# FILED
November 6, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE,

AT NASHVILLE

_______________________________________________________ ) DAN W. WILKINS, ) Davidson County Circuit Court ) No. 94C-3634 Plaintiff/Appella

nt. ) ) and ) ) FRANCES WILKINS, ) ) Plaintiff. ) ) VS. ) C.A. No. 01A01-9707-CV-00299 ) DODSON, PARKER

, SHIPLEY, BEHM

) & SEABORG, A partne rship, and ) HARLAN DODSON, III, P AUL S. ) PARKER, MARI

ETTA L. SHIPLEY , ) MARGARET BE HM, and JO N P. ) SEABORG, Individually , ) ) Defendants/App

ellees. ) )

______________________________________________________________________________ From the Circuit Court of Davidson County at Nashville. Honorable Donald P. Harris, Judge
Dan W. Wilkins, Pro Se

Winston S. Evans , Dennis J. Meaker , EVANS, JONES & REYNOLDS, Nashville, Tennessee Attorneys f

or Defendants/A

ppellees.
OPINION FIL

ED: AFFIRMED AND

REMANDED FARMER, J. HIGHERS, J. : (Concurs) LILLARD, J. : (Concurs)This is a legal malpractice case. The malpractice action arose out of a len

der liability lawsuit that was dismissed by the trial court because it ha d not been filed within the limitations period. Dismissal of

the underlying lawsui

t was affirmed on

appeal by the Midd

le Section of this Court. Wilkins v. Third Nationa l Bank in Nashville , 884 S.W.2d 7 58 (Tenn. App. 1994), cert. d enied , (S ept. 26, 1994). Wh ile not in the reco

rd before us, the

facts of the unde

rlying lawsuit containedin the aforementioned decision of the Mid

dle Section will

be helpful in understanding the facts of this appeal.

In 1978, Dan W. Wil kins (hereinafter, “Wilkins”) opened a res taurant in Chattanooga , Tennessee, which he operated until 1981 when he sold the business to a Dr. Carpentier. After the sale, Wilki ns remaine d liable on the restaurant’s lease and continued as individual guarantor of a loan made to the restaurant by the Third National Bank (hereinafter, “Third National” or “Bank”). Carpentier

operated the restaurant until 1985, when it was closed due to financi al difficulties. Wilkins subsequently took over the restaurant because he remained liable on both the debt to Third National and the original lease. Wilkins also incorporated “Dorothy W., Inc.” (hereinafter, “DW I”) for the purpose o

f operating the r

estaurant.
By two separate loans, Third Na tio nal Bank loaned DW

I a total of $330,00

0 to renovate the restaurant facility and get the restaurant open and operating. Both loans were due and payable on June 1, 1986. The r estaurant reope

ned in April, 1986. In the Spring of 1986, Wilkins and DWI requested that the Bank loan the enterprise an

additional $800,000 for a total loan balance of $1,130,000 in order to consolidate the existing loans and to provide addition

al working capita

l. Third National declined

to make the loan, a

nd referred the

existing loans of W

ilkins and DWI to its special assets div

ision which specia

lized in collectin

g problem loans.

Various negotiations took place between Wilkins, DWI and the Bank. Ultimately, the notes came due on June 1, 1986. When Wilkins and DWI did not pay the notes, Third National Bank notified Wilkins on June 1 2, 1986, that both his personal loans and his business loans were delinquent. On July 16, 1986, Wilkins met with a representative of Third National to discuss the request for additional financing. Wilkins and the Bank reached a tentative agreement whereby theBank

would extend Wilkins’ and DWI’s existing loans for ten years if Wilkins would satisfy three conditions: (1) secure a l oan commitment for at least $450,000 from another lender; (2) secure $150,000 in financing for new equipment; and (3) obtain a ten-year extension on the lease for the restaurant pre

mises.

Within ten days after the agreement was reached, and in any case before July 31, 1986, Wilkins informed Third National that he had obtained $ 350, 000 in financing from Union Plant ers Bank (hereinafter, “Union Planters”) and that he had satisfied the other condition s unde r the parties’ agreement. Third N ational canceled the whole deal and suggested that Wilkins have Union Planters assume Third National’s loans. When i nforme d of Third National’s reaction and proposal, Union Planters withdrew its approval for the $350,000 loan. Wilkins then informed Third National’s representative that Union Planters had withdrawn its financing. From that time on, Third National unequivocally re fused to make any

additional loans to Wi lkins and never indicated a willingness

to alter its position. Ultimate

ly, DWI filed for

bankruptcy prote

ction, and on Augus

t18, 1986, Third Nation

al called due all

outstanding loans it

had made to DWI a

nd Wilkins.

On August 16, 1989, Wilkins and DWI sued Third National Bank in the Circuit

Court of Hamilton County, alleging that the bank had b reached its agreement to finance the restaurant project. Wilkins was represented at that time by Jon Seaborg and the law firm of Dodson, Parker, Shipley, Behm & Seaborg, the appellees in the p

resent appeal.

The Hamilton County lawsuit was dismissed for improper venue in June, 1990, and Wilkins and DWI refiled the suit in t h e Circuit Courtfor Davidson County on May 31, 1991. When the suit was refiled in Davidson County, Wilkins was represented by Irwin Venick and the law firm of Woods & Venick. Neither Seaborg nor his law firm had any involvement in the lawsuit at the time it was refiled in Davidson County. On July 15, 1991, Thir

d National filed its

answer in which it

stated in releva

nt part:

SECOND DEFENSE The plaintiff’s claims are barred by the statute of limitations.

In January, 1992, the trial court granted Wilkins’ and DWI’s motion for a voluntarynonsuit

of all claims

against the Bank, except for the claim alleging that the Bank had breached it

s July 16, 1986, financing agr eement. In September, 1992, Joe Sadler, a Third National employee gave his deposition testimony at which time the Bank’s July 15, 1 991, answer was m ade an exhibit. Wilkins was in attendance at that deposition. On November 13, 1992, Third National filed a motion for summary judgment, a sserting that the remaining claim was barred by the three-year statute of limitations governing injurie s to property. The

trial court grant

ed the motion by orde

r entered April 2, 1993. In dismissing the suit, the trial court determined that the breach of the financing a

greement, if any, occurred on or before July 31, 1986, when Third National unequivocally declined to provide Wilkins with additional financing. The trial court found that Wilkins knew or should have known on July31, 1986, that

the cause of action had accrued; therefore, the trial court concluded that the complaint filed on August 16, 1989, was time barred because it was filed more than three years after the cause of action accrued.

On appeal, the Middle Section of this Court affirmed the decision of the trial court. Wilkins v. Third National Bank in N ashville , 884 S.W.2d 758 (Ten n. App. 1 994), cert. denied , (Sept. 26, 1994). This Court held that under T.C.A. § 28-3-105(1), actions for injuries to personal
or real property must be commenced within three years from the accrual of the cause of ac tion. Id. at 761. The Court concluded that no genuine factual dispute existed that Wilkins knew on or before July 31, 198 6, that Third Natio nal Bank had repu

diated all of its ea

rlier financing a

greements . Therefore, the Court

determinedthat the trial court had properly concluded that Wilkins’ and DWI’s
cause of action was time-barred when Wilkins filed suit on August 16, 1989. The aforementioned are the pertinent facts gleaned from the prior opinion of the Middle Section of this Court.

On November 12, 1993 , while the suit again st Third National Bank was pending, Dan W. Wilkins an d

his wife, France

s Wilkins, filed the

ir legal malprac

tice claim in the Da

vidson County Circuit Court. Wilkins voluntarily dismissed that complaint on De c ember 14, 1993, bu t refiled it
on November

8, 1994. Named as defendants in the suit are the law firm of Dodson, Parker, Shipley, Behm& Seaborg, and the following individually named defendants: Harlan Dodson, III , Paul S. Parker, Marietta L. Shiple y, Margaret L. Be

hm and Jon P. Seaborg. Wilkins alleged in the complaint that the defenda

nts had failed to f

ile timely the lawsu

it against Third Na

tional.1 Dan Wilkins is the only plaintiff to appea

l. On July 21, 1995, the tr

ial court e

n tered an order dismissing all claims asserted by the Wilkins on behalf of DWI, on the basis that the Wilkins did not have s tanding t o assert those claims. On September 16, 1996, the trial court entered an order dismissing the claims of Frances Wilkins, thereby leaving only the claims asserted by Dan W. Wilkins. Ultimately on May 30, 1997, the trial court issued a Memorandum Opinion granting thedef endants’ motion for summary judgment. In that op

inion, the trial cou

rt stated in relev

ant part:

On August 16, 198 9, D orothy W., Inc., a nd Mr. and Mrs. Wilkins, r epresented by Mr. Seaborg, filed suit against Third National Bank in Chattanooga, Te

nnessee. That la

wsuit w as dismissed, withoutprejudice, in June, 1990 and was refiled on May 31, 1991, in Nashville. At the time of refi ling, both Dorothy W. Inc., and the Wilkins were represented by Irwin Venick, a Nashville attorney. In its answer, Third

Natio nal Bankraised a statute of limitations defense. The bank later filed for summary judgment on that issue and on April 1, 1993, the Fifth Circuit Court for Davidson County , Tennessee, Judge Walter Kurtz, presiding, granted the defendant bank summary judgment. . . .

. . . . The trial court’s ruling was appealed to the Courtof Appeals where it was affirmed. . . . It is clear that both the trial court and the Courtof Appeals considered the gravamen of Mr. Wilkins’ complaint to be a breach of contract action. As such, the a pplica ble period of limitations is found in Tennessee Code Annotated § 28-3-109(a)(3), which provides for a six

(6) year statute of limitations. Alexander v. Third National Bank , 915 S.W.2d 797 (Tenn. 1996).

. . . . In or der to prevail in this action, plaintiffs must first prov e Third Nati onal Bankwas liable to them for breaching its July 16, 1986, agreement to amo rti z e and extend plaintiffs’ personal indebtedness.Second, plaintiffs must prove defendants failed to file suit on that claim within the applicable statute of limitations. Since it is undisputed thatboth the suit filed in behalf of the Wilkins by Mr. Seaborg and that brought by Mr. Venick were within six years from t he dat e the alleged cause of action arose, July 30, 1986, plaintiff cannot prevail in this case. D efendants cann ot be held respons

ible because plaintiffs’ attorney in the subsequent Nashville action failed to take issue with the statut e of limitations Third National Bank asserted was controlling. Accordingly, the complaint shoul d be dismissed.

On June 6, 1997, the trial court entered its “Order of Dismissal,” and Wilkins timely filed a notice of appeal on July 3, 1997. 1Rule 56.04 Tenn.R.Civ.P. provides tha t summa ry judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together withthe affidavits, if any, show that there i s no genuine is sue as to any material fact and that the moving party is entit

led to a judgment as

a matter of law."

When the facts m

ateri al to the application of a rule of law are undisputed, the application is a matter of law f or the Court since t

here is nothing to su

bmit to the jury to resolve in favor of one party or the other. In other words, when there is no dispute over t he e vidence establishing the facts that control the applica tion of a rule of law, summary judgment is an appr opriate

means of deciding that issue. Byrd v. Hall, 847 S.W.2d 208, 214-15 (Tenn.199 3)
. Consequently, the scope of rev iew is de novo with no presumption of correctness. Rule 13(d) T.R.A.P.; Union Carbide Corp. v. Huddleston , 854 S.W.2d 87, 91 (Tenn.1993). "No presumption of correctness

attaches to decisions granting [or denying] summary judgments because they involve only questions of law. Thus, on appeal, we must make a fresh determination concerning whether
or not the requirements of Tenn. R. Civ. P. 56 have been met." Cowden v. Sovran Bank/Central South , 816 S.W.2d 741, 744 (Tenn.1991).

In the underlying lawsuit against the Bank, the Middle Section of this Court affirmed the trial court’s dismissal of the suit on the basis that Wilkins had not initiated proceedings within the three-year limitations period. Wilkins v. Third Nationa l Bank in Nashville , 884 S.W.2d 758, 762 (Ten n. App. 1994), cert. denied , (Sept. 26, 1994). A fter the Middle Se

ction had issued it s opinion i n the underly

ing case, the Tennessee Supreme Court issued its opinion in Alexander v. Third National Bank , 91 5 S. W.2d 797 (Tenn. 1996), which held that the limitations period applicable

to lender liability actions is six years. In the case at bar, the trial court dis missed the lawsuit, finding that there could be no cause of action for malpractice because the underlying lender liability lawsuit had been brought within the six-year statute of limitations.

Upon analysis of the case at bar, we find that the operative and relevant questio

n is notwhether the unde

rlying lawsuit aga

inst the Bank was filed within threeyears or even six years of the accrual of the cause of action. Rather, the operative questi

on is whether the case at bar was fil ed within the applicable limitations period for legal malpractice actions. T.C.A. § 28-3-104(a)states:
The following actions s hall be commence

d within one (1) year after the cause of action accrued:

. . . . (2) Actions and suits ag ainst attorneys or

licensed public accountants

or certified public

accountants for malpractice, whether the actions are g

rounded or based

in contract or tor

t;

Whil e the statute of limitations for legal malpractice is one year from the date th e cause of action a

ccrues, when the cause of action accrues is determined by apply ing the discovery rule. In John Kohl

& Co. P.C. v. Dearbor

n & Ewing , No. 01S01-9711-CV-00255, slip op. at 6-7 (Tenn. Oct. 5, 1998), the Supreme Court explained that

In legal malprac

tice cases, the d

iscovery r ule is composed of two distinctelements: (1) the plaintiff must

suffer legall

y cognizab

le damage - an actual injury

- as a result

of the defendant’s wrongful or negligent conduct, and (2) the plaintiff must have known or in the exercise of reasonable di ligence should have known that this injury was caused by the defe ndant’s wrongful or neg ligent conduct. Carvel l v. Bot toms , 900 S.W.2d 23, 28-30 (Tenn. 1995). An actual injury occurs when ther

e is the lo ss o f a legal right, remedy or interest, or the imposition of a liability. (Citation omitted.) An actual injury may a lso take t he form of the plaintiff being forced to take someaction or otherw

ise suffer “some

actu al in convenience,” such as incurring an expense, a s a resul t of the defendant’s negligent or wrongful act. . . . The knowledge component of the discovery rul e ma y be established by evidence of actual or constructive knowledge of the inj ury. Carvel

l , 900 S.W.2d at 29. Accordingly, the statute of limitations begins to run when the plaintiff has actual knowledge of the injury as where, for example, the defendant admits to having committed malpractice or the plain tiff is informed by another attorney of the malpractice. Under the t heo ry o f constructive knowledge, however, the statute

may begin to run at an earlier date - whene ver the plaintiff becomes aware or

reasonably should have become aware of facts sufficient to

put a reasonable person on notice that an injury has been sustained as a result of the defend ant ’s negligent or wrongful conduct. Id. We have stressed, however, that there is no requirement that the plaintiff actually know the specific type of legal

claim he or she has, or

that the injury constituted a breach of the appropriate lega l standard. (Citation omitted.) Rather, “the pla

intiff is deemed to have discovered

the right of

action if he is aware of

facts sufficient to put a reasonable person on notice that he has suffered an injury

as a result of wrongful conduct.” Carvell , 900 S.W.2d at 29 ( quoting Ro e v. Jefferson , 875 S.W.2d 653, 657 (Tenn. 1994)).

Id . at 6-7.In Wilkins’ prior lawsu it against Third N

ational Bank, the

Middle Sectio

n o f this Courtdetermined that the claim was time-barred under a three-yea r statute of limitations. The doctrine of collateral estoppel prevents relitigation of a particular dispositive issue which was necessarily

and finally decided

with finality in a previous suit involving at least one of the parties. Morris v. Esmark Apparel, Inc. , 832 S.W.2d 563, 565 (Tenn. App. 1991). Therefore, the prior decision of this Court that the underlying

cause of action w

as g over ned by a three-ye ar statute of limitations operates to estop imposition of a different statute of limitations.

This Court held

in Smith v. Petkoff

, 919 S.W.2d 595, 597 (Tenn. App. 1995), that the plaintiff suffered an actual injury or legally cog nizable inju

ry when the statute of limitations expired. Accordingl y, we conclude that the plaintiff suffered an injury under the Kohl analysis when the statute of limita tions applicable to

the Bank lawsuit

expired in July

1989. We reject any contention that

the injury was not “legally c ognizable” until the judgment of the trial court had been affirmed by the Court of Appeals. The Carvell court reject ed the same a rgument sta ting:

The plaintiffs contend generally that where an o ngoing lawsuit i mplicates the conduct of a la wyer, and w

here the valid

ity of a malpractice claim depends on th e outcome

of this underlying suit, the statutory period of limitations should be tolled until all th

e appellate proceedings of the underlying suit have been c ompleted. Although the “tolling” argument pressed by the plaintiffs has been accepted in some

jurisdictions, it is

not supported by

our cases.

. . . Since o ur cases est ablish that the injury need not be
“ irremediable” in the sense urg ed by the pla

intiffs, we reje

ct their argument.

Carvell , 900 S.W.2d at 29.

The Carvell

court cited with a

pproval Chambers v. Dillow , 713 S.W.2d 896 (Tenn. 1986), a case in whi ch the plai nti ff h ad em plo yed an att orn ey to bri ng cl aim s aga ins t a c oun ty. Although the attorney filed the complaint immediately, the attorney failed

to prosecute the action, and th e trial court dismissed the case in April, 1981. Not until March 1982 was the plaintiff informedthat the action had been dismissed. The plaintiff subsequently hired another attorney who was successful in reinstating the cause of action only to have it dismissed on statute of limitationsgrounds. Ultimately in October 1983, the plaintiff filed a lawsuit against the or i ginal attorney for legal malpractice. The trial court held that the action wasbarred by the statute of limitations, but the Courtof Appeals

reversed that judgment, holding that reinstatement of the action tolled the statutory periodof limitation until April 1983 when t he lawsuit was dismissed for the second time. Ultima tel y, the S upreme Court reversed the Court of Appeals, finding that the cause of action accrued in March 1982 when the plaintiff first became aware that

his initial case had been dismissed because of the first attorney’s neglige nce.

In light of the foregoinganalysis, it is apparent that Wilkins suffered an injury when the statute of limitations expired in July 1989. Therefor e, the only remaining issue is whether Wilkins knew or should have known that he had suffered an injury

due to his attorney’s negligence
more than one year

before the instant legal malpractice lawsuit was filed. Stated differently, did the statute of limitations in the leg

al malpractice l

awsuit begin to

run when Third National Bank, in the underlying lawsuit, filed its answer asserting as an affirmative d efense that the statute of limitations had expired.

In Teeters v. Curry , 518 S.W.2d 512 (Tenn, 1974), a medical malpractice case which has been universall

y applied t o negligence ca ses, including lega

l malpractice ca

ses, the Supreme Court stated:

We adopt as the rule of this jurisdiction the principle tha

t in those classes of case

s where medical m

alpractice is

asserted to have occurred through the negligent perfor m ance of surgica

l procedures, the cause of

action accrues and the statute of limitations commences to run when the patie

nt discovers,

or in the exercise of

reasonable care and diligence for his own health and welfare, shoul d ha ve discovered the resulting injury.

Id. at 517.

Wilkins’ deposit ion testi mony is revealing as to his knowledge concerning the importance of the statute of limitations. Ironically, Wilkins testified that he first learned about the limitations period whenhe dis covered that the Bank had to file foreclosure documents within a certain time in or

der to preserve

its interest in a hou

se owned by Wilkins . He testified:Q: At that time, the time of that first meeting that you had with Mr. S eaborg and Mr. Dodson, did you have any unde

rstanding what a statute of limitatio

ns was? A: No not to my knowledge. If I recall, I don’t, no. Q: Sometime before the lawsuit was filed did you have som e understanding wha

t a statute of limita

tions was? A: Yes. Q: How did you come to that understanding? A: Well, John Seaborg said that we had -- that the bank hada statute of limitations that they had to file this, some k ind of foreclosure documents, before losing their right to the house. And that intrigued me, because we were counting down trying to make s ure th at they didn’t-- you know, that I can make that sta

tute of limi

tati ons to protect the equity in that ho

use I could use

to pay income

taxes. So, to my recollection, that’s when -- first time I learned about the term and the importance of the statute of limitations, with John Seaborg. Q: Once you learned about the importance of the statute of limitations, did you have any di scu ssion with either Mr. Dodson or Mr. Seaborg about

w hat the statute of limitations would be on your claim against Third National Bank? A: Ultimately, we d

id, yes.

Wilkins testified further

concerning the operation of the statute of limitations and his claims against Thir

d National:
Q: Mr. Wilkins, you’ve been han ded what has bee

n marked exhibit 5 to this case. That purports to be the answer of Third National Bank in the lawsuit filed he re in Davi dson County. Have y ou seen this document before? A: I’m sure I have. Q: Do you recall w

hen you first saw it

? A: No, I don’t. Q: This is one of

tho se documents that you would have gotten shortly after Mr.

Venick receive

d it? A: I would assume so. Q: In this particular copy, up in the upper right-hand side there is an exhibit number from another deposition. You were present when Joe Sadler gave a deposition in September of 1992, weren’t you? A: Yes. Q: That was taken over here at the offices of Farris, Warfield & Kanaday?A: That’s right.

. . . . Q: You subsequently received a copy of the deposition of Mr. Sadler; is that right? A: Uh-huh. Q: Do you recall w

hen you receive

d that? A: Not specifically, no. I’m sure I received it timely. Q: Turn over to page 3 of this an swer, and the title, “Second Defense.” Do you have any understanding what Third National Bank is saying about your complaint, under the caption “Second defense”? A: Now I do, but ironic

ally that’s what I

w as just telling you. . . . And I would read the body of the thin g, and I didn’t really even glance at these things until the other day, when my wife brought it up.

. . . I figured I didn’ t know what those thi ngs were, and I se

e now it says, “Barred by the statute of limitations,” and I have never brought that up or thought of it. I didn’t know what it meant. . . . Q: In July of 1991 you

did know what a sta

tute of limitations w

as? A: Yes. Q: Because you had talked to Mr. Seaborg? A: Yes. But I didn’t really pay any attention to this stuff here. Q: You read over the

answer but y

ou didn’t pay attention to what that was? A: Usually what I wou ld d o, I would get my mail. I would be working, doing my stuff, and read through. And I’d just call up if I had a question, and he would talk to me. And this is a lot of reading. Nowadays I read it. Now Ihave to read everything. But at that point I didn’t know I had any pr oble ms, I was just concentrating on let’s win this lawsuit. And I hate to tell you, that it sou nds like I’m a dummy, but quite frankly, I wasn’t as well versed in the l ega l documents as I am today.

. . . . Q: Well, if you had re ad th is answer back in 1991 that said, “Plaintiff’s claims are barred by the statute of limitations,” you would have und ersto od that Third National Bank was saying that your claims were bar

red by the statute

of limitations; isn’t t

hat correct? A: No, I would not have understood that, unless I sat and thought about it I probably would. . . . I don’t think I even read that part o f the first defense because “defense” didn’t mean anything to me. . . . Q: Prior to this point in time you did unders tand if th e statute of limitations barred your cla imyou were just out of luck, you wouldn’t get anything from Third National Bank; isn’t that true? A: That was the concept when we had the incident on the house.
. .

.Q: Let’s go over this again, Mr. Wilkins. You und erstood as early as June of 1989 that a statute of limitations could result in your losing your cause of action against Third National Bank, didn’t you sir? A: Yes, I knew it was a possibility.

. . . . Q: So you understoo d that a statute of limitations could be a very serious defense? A: Absolutely. Q: And you understood that one possible res ul t of a successful statut e of limitations defense is you would lose your claims agai ns t Third National Bank? A: In retrospect, yes. But John told me I had no problems, so I didn’t worry about it. Q: As of June 29 , 1989, yo u understood that one possible effect of the successful statute of limitations defense was you could lose your claim against Thir

d National Bank; is th

at right? A: Well, yes. But John fold [sic] me not to worry abo ut it so I didn’t, so I thought it was inconsequential then. Q: So had you read this second defens e in thi s answer you would have understood the term “statute of limitations,” wouldn’t you? A: Oh, yes, but I

would have disregarded

it because John a

ssured me there was no prob

lem. Q: Of course, Irwin Venick was representing you at the time of the answer that has b

een marked exhi

bit 5; isn’t that right

? A: Yes . . . .

Based on the foregoing analysis, Wilkins knew or by the exercise of reasonable care and diligence, should have known about the alleged legal malpractice on July 12, 1991, when Third National Ba nk filed its answer in the underlying lawsuit asserting the defense of the statute of limitations. As noted by this Court in Caledonia Leasing and Equipment Co., Inc. v. Armstrong, Allen, Braden, Goodma

n, McBride & Prewitt

, 865 S.W.2d 10 (Tenn. App. 1992):

A cause of action for legal malpractice accrues and t h e statute of limitations commences to run whe n (1 ) the attorney has committed negligence, (2) the client has been injured by that negligence, Ameraccount

Club, Inc. v. Hill

, 61 7 S .W.2d 876, 878-79 (Tenn. 1981), and (3) the clien

t dis covers, or

in the exercise o

f reasonable diligence, should have d iscover ed, the existence of the facts constituting negligence by the attorney and the injury caused by the attorney’s negligence. Security Bank & Trust v. Fabricating, Inc. , 673 S.W.2d 860, 865 (Tenn. 1983).Caledonia , 865 S.W.2d at 13.

Wilkins testified that

he knew what a statute of limitations was and how it operated
as early as June 198 9. H e further testified that he received a copy of the Bank’s July 12, 1991,
answer which raised

as an affirmativ

e defense that the underlyin

g lawsuit was barr

ed by the statute of limitations, and he was in attendance at the September 1992 deposition of Joe Sadler at

which the Bank’s answer was introd uced as an exhibit. Therefore, we conclude that Wilkins should have known as early as July

12, 1991, that Seaborg may have committed legal malpractice by not filing the underlying lawsui

t against the Bank w

ithin the limitations p

eriod. Whether W

ilk ins a ctually read the answer is of no consequence to our determination as he is requ ired to use reasonable care and diligence. Carvell , 900 S .W.2d at 28. In spite of the assurances that Wilkins alleged he received from Jon Seaborg, it

must be remembered that when Third National’s answer was filed and when Sadler ’s deposition was con ducted, Irwin Ve

nick and not Jon Sea

borg, was Wilkins’ atto rney . Venick’s knowledge of the f acts a nd cir cumstances is imputed to Wilkins. Smith v. Petkoff , 919 S.W.2d 595, 597 (Tenn. App. 1995). In Roberts v. State , 546 S.W.2d 264, 265 (Tenn. Crim. App. 1977), the court stated: “ [a] client is implie d to have notice of facts transmitted to his attorneyin the matter and course of his employment for such client.” Likewise in Moody v. Moody , 681 S.W.2d 545, 546 (Tenn. 1984), the Supreme Court stated “[c]ounsel’s knowledge must be attributed to his client, if the actions of the court are to have any efficacy.” In Banton v. Marks , 623 S.W.2d 113 (Tenn. App. 1981), the Eastern Section of this Court made the following observation:

Based upon our understanding of Teeters , Ameraccount and T.C.A. § 28-3-104, relief from the one year statute of limitations in legal malpractice actions is availab le onlywhen matters of fact, as opposed to matter s of l aw, are unknown or undisclosed to a prospective plaintiff.
Banton, 623 S.W.2d at 116.

Wilkins has not alleged any fraud or conce alment of the fac

ts by any of his

attorneys. In fact, when asked about his communications with Venick, Wilkins responded:Q: How was Mr. Venick at communicating with you? A: I thought he was excellent.

The foregoing analysis leads us to the conclusion that the cause of action for legal malpractice accrued and Wilkins knew or should have known about it throu gh the exercise of reasonable

care and diligence when

Third National Ban

k raised the statu

te of limitations def

ense in its answer filed on July 12, 19 91. Gat linburg Summit Horizontal Prop. Regime Council of CoOwners, Inc. v. Jarvis , No. 03A01-9404-CV-00135 (Tenn. App. Jan. 11, 1995). In any event, the
cause of action accru

ed no late r than September 1992 when Wilkins attended Sadler’s deposition and the Bank’s answer was introduced as an exhibit.

Our Supreme Court has h

eld th at a pla

intiff cannot be permitted to wait until he knows all of the injurious effects or consequences of an actionable wrong to delay the accrual of a
cause of action. Chambers v. Dillow , 713 S.W.2d 896, 898-99 (Tenn. 1986), Security Bank & Trust Co. v. Fabricating, Inc. , 673 S.W.2d 860, 864-65 (Tenn. 1983). Under T.C.A. § 28-3-104(a), legal malpractice claims must be initiated within one ye ar a fter the cause of action accrued. We thereforeconclude that Wil kins’ filing of the complaint on November 12, 1993, was not within one year of the time that the cause of action accrued.

We affirm the judgm ent of the trial court, though on different grounds than articulated therein. The remaining issues are pretermitted by this opinion. Costs of this appeal are taxed to the appellant, Dan Wilkins, for which execution may issue if necessary.

____________________________________ FARMER, J.

______________________________ HIGHERS, J. (Concu

rs)

______________________________ LILLARD, J. (Conc

urs)