IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

October 16, 2013 Session

KAREN RENAE ALEO v. JOE WEYANT

Appeal from the Circuit Court for Montgomery County

No. MCCCCVCT101126 Tom E. Gray, Judge

No. M2013-00355-COA-R3-CV - Filed December 12, 2013

Client sued her former attorney for legal malpractice, breach of contract, and negligent

infliction of emotional distress arising from the attorney’s failure to include in the marital

dissolution agreement, prepared for the client and incorporated into Final Divorce Decree,

provisions that would permit the client to receive one-half of her husband’s military pension

and to be listed as the beneficiary of his Survivor Benefit Plan following their divorce. The

trial court granted summary judgment to the attorney on the grounds that the statute of

limitations had passed on the malpractice and the breach of contract claims and that the

evidence did not support a finding of serious mental injury sufficient to support the negligent

infliction of emotional distress claim; client appeals. Finding no error, we affirm the

judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

RICHARD H. DINKINS, J., delivered the opinion of the court, in which PATRICIA J. COTTRELL,

M. S., P. J., and FRANK G. CLEMENT, J., joined.

Peter M. Napolitano, Clarksville, Tennessee, for the appellant, Karen Renae Aleo.

Thomas F. Mink, II and Charles M. Duke, Nashville, Tennessee, for the appellee, Joe

Weyant.

OPINION

This appeal arises out of a legal malpractice action filed by Karen Aleo against

Attorney Joseph Weyant arising from Attorney Weyant’s handling of a divorce between Ms.

Aleo and her former husband, Michael James Aleo. On June 1, 2010, Ms. Aleo filed a

complaint alleging that Attorney Weyant had failed to include provisions in the marital

dissolution agreement which was incorporated into the Final Decree of Divorce specifying
that she would receive fifty percent of her former husband’s military pension for the rest of

her life and that she would be named as her former husband’s beneficiary under his Survivor

Benefit Plan; she asserted that, as a result of this failure, she would not receive the benefits

as she and her former husband had agreed. The complaint alleged that the failure to include

these provisions constituted professional negligence, breach of contract, and negligent

infliction of emotional distress. Attorney Weyant answered the complaint on September 9

generally denying the allegations and asserting five affirmative defenses.

1

Attorney Weyant filed a motion for summary judgment on October 24, 2012,

supported by a memorandum in support of the motion, a statement of undisputed material

facts, and the depositions of Ms. Aleo, Attorney Peter Napolitano, and himself. Ms. Aleo

filed a response opposing the motion, which response included her “Statement of Undisputed

and Disputed Material Facts.” After argument, the court entered an order granting the

motion, stating:

[I]t is the Court’s opinion that, based upon the date of discovery of damage to

the plaintiff and Section 28-3-104 of the Tennessee Code Annotated, the

statute of limitations for bringing an action against the defendant, Joe Weyant,

based upon professional negligence and/or breach of contract has expired, and

the Motion for Summary Judgment presently pending should be granted on

behalf of the movant, Joe Weyant.

The Court is further of the opinion that, based upon the entire record,

particularly the deposition testimony of the plaintiff, Karen Aleo, there is no

evidence of any serious mental injury to the plaintiff, Karen Aleo, and,

therefore, an essential element of the tort of negligent infliction of emotional

distress is missing; therefore, the Motion for Summary judgment filed on

behalf of the defendant, Joe Weyant, as to negligent infliction of emotional

distress is granted.

Ms. Aleo appeals, contending that the trial court erred in granting summary judgment

because of its “failure to properly apply the ‘discovery rule’” and its failure to consider and

The affirmative defenses were: (1) that the action was barred by the statute of limitations at Tenn.

1

Code Ann. § 28-3-104(a) (2); (2) failure to state a claim upon which relief can be granted, Tenn. R. Civ. P.

12.02 (6); (3) comparative fault of Ms. Aleo and her former husband, MichaelJames Aleo; (4) failure to join

Mr. Aleo as a party; and (5) untimeliness of the suit because all potential remedies in the underlying divorce

action had not been exhausted. He amended his answer on April 19, 2011 to include the additional

affirmative defense of comparative fault of Attorney Peter Napolitano, who began assisting Ms. Aleo in

October 2008 and filed the instant suit on her behalf. 

-2-
apply the doctrines of fraudulent concealment and equitable estoppel;she also complainsthat

the court erred in dismissing her claim for negligent infliction of emotional distress.

STANDARD OF REVIEW

Summary judgment is an appropriate vehicle for resolving a case where a party can

show that “there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Tenn. R. Civ. P. 56.04; see also Tenn. Code Ann.

§ 20-16-101. A party seeking summary judgment may make such a showing by either: (1)

2

affirmatively negating an essential element of the non-moving party’s claim; or (2) showing

that the non-moving party will not be able to prove an essential element at trial. Hannan v.

Alltel Publ’g Co., 270 S.W.3d 1, 8–9 (Tenn. 2008). If the moving party’s motion is properly

supported, “[t]he burden of production then shifts to the nonmoving party to show that a

genuine issue of material fact exists.” Id. at 5 (citing Byrd v. Hall, 847 S.W.2d 208,

215(Tenn. 1993)). The non-moving party may accomplish this by:

(1) pointing to evidence establishing material factual disputes that were

overlooked or ignored by the moving party; (2) rehabilitating the evidence

attacked by the moving party; (3) producing additional evidence establishing

the existence of a genuine issue for the trial; or (4) submitting an affidavit

explaining the necessity for further discovery pursuant to Tenn. R. Civ. P. Rule

56.06.

Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008) (citations omitted).

A trial court’s decision on a motion for summary judgment enjoys no presumption of

correctness on appeal. Draper v. Westerfield, 181 S.W.3d 283, 288 (Tenn. 2005). We

review the summary judgment decision as a question of law. Finister v. Humboldt Gen.

Hosp., Inc., 970 S.W.2d 435, 437 (Tenn. 1998). Therefore we review the record de novo and

make a fresh determination of whether the requirements of Tenn. R. Civ. P. 56 have been

met. Eadie v. Complete Co., Inc., 142 S.W.3d 288, 291 (Tenn. 2004). We consider the

evidence presented at the summary judgment stage in the light most favorable to the

non-moving party, and afford that party all reasonable inferences. Draper, 181 S.W.3d at

288. “If there is a dispute as to any material fact or any doubt as to the conclusions to be

drawn from that fact, the motion must be denied.” Byrd, 847 S.W.2d at 215.

Tenn. Code Ann. § 20-16-101, applicable to summary judgments, was enacted by 2011 Tenn. Pub. 2

Acts. Ch. 498, became effective July 1, 2011 and is applicable to cases filed on or after that date. 

-3-
DISCUSSION

A. STATUTE OF LIMITATIONS

The statue of limitations for legal malpractice, whether grounded in tort or contract,

is one year from the time the action accrues. Tenn. Code Ann. § 28-3-104 (a) (2). As noted

in John Kohl & Co. v. Dearborn & Ewing:

When the cause of action accrues is determined by applying the discovery rule.

Under this rule, a cause of action accrues when the plaintiff knows or in the

exercise of reasonable care and diligence should know that an injury has been

sustained as a result of wrongful or tortious conduct by the defendant.

Shadrick v. Coker, 963 S.W.2d 726, 733 (Tenn.1998); Stanbury v. Bacardi,

953 S.W.2d 671, 677 (Tenn.1997).

John Kohl & Co. P.C. v. Dearborn & Ewing, 977 S.W.2d 528, 532 (Tenn. 1998). The

knowledge component of the discovery rule can be established by evidence showing that the

plaintiff actually knew that she had suffered an injury or if the plaintiff became aware of facts

sufficient to put a reasonable person on notice that an injury had been sustained as a result

of the defendant’s conduct. Carvell v. Bottoms, 900 S.W.2d 23, 29 (Tenn. 1995).

3

The statement of undisputed facts filed in support of the motion included the

following facts pertinent to Ms. Aleo’s learning that she suffered a loss:

3. On or about June 16, 2008, a Divorce Decree was entered in the Circuit

Court for Montgomery County, Tennessee, signed by Judge Michael R. Jones,

which included the Marital Dissolution Agreement and a Permanent Parenting

Plan.

4. Ms. Aleo advised Joe Weyant that the Divorce Decree and/or Marital

Dissolution Agreement were incorrect, because it/they failed to dispose of the

military retirement of Mr. Aleo, which was a marital asset. This discussion

occurred in close proximity to the time when the Divorce Decree, and

incorporated Marital Dissolution Agreement, were entered on the Court’s

minutes.

An actual injury occurs when there is a loss of a legal right, remedy, or interest, or the imposition 3

of a liability. John Kohl & Co., 977 S.W.2d at 532. That Ms. Aleo suffered a loss is not at issue in this

appeal. 

-4-
5. On the 27th day of June 2008, Ms. Aleo went to the office of the staff Judge

Advocate and was advised thay she would not get a portion of the military retirement

because the decree was silent as to that asset.

6. During the month of October 2008, Ms. Aleo spoke to Peter Napolitano about this

matter, and her inability to obtain her portion of Mr. Aleo’s military benefits.

19. Ms. Aleo first realized she had been injured and/or damaged by the actions or

omissions of Joe Weyant on or about June 27, 2008.

20. Ms. Aleo realized she had been injured by the acts or omissions of Joe Weyant

when she visited with the Judge Advocate General and was advised she could not

obtain retirements benefits from Mr. Aleo because of the lack of appropriate language

in the Divorce Decree, and this meeting occurred on June 27, 2008.

Ms. Aleo’s deposition included the following testimony relating to the date that she

learned of her loss:

Q: So you went to see the Judge Advocate on June 27, 2008.

A: Yes.

Q: What questions did you have for them?

A: Just to see if there was anything they could do for me, as far as

maybe if I go to the Defense Department with the retirement, with the Divorce

Decree, if they would somehow help me get the retirement pay.

But, again, the response was they didn’t have anything to do with it

anymore just because my ex-husband was out of the service. He was a civilian

Q: Was it at that time that you knew that you had suffered a loss as a result of

this?

A: Well yeah, I kind of knew before that. Just - - because nothing was

being done. Nothing was being filed. Nothing was being amended.

In addition, Attorney Weyant’s deposition included the following pertinent testimony:

Q. Did Ms. Aleo - - do you remember when she first came to you to

alert you to her concerns, if any, about the absence of that in the MDA and the

final decree?

A. Yes, I do.

* * *

-5-
Q. Was it before of after you filed the MDA with the Court and the final

decree?

A. As I recall, it was after.

* * *

Q. What do you recall, if anything, about what she - - her concern that

she expressed? What did she say to you?

A. Well, my recollection is that she came to me probably within a

month after the entry of the final decree, maybe even less, and told me, “They

won’t work with this out at Fort Campbell. This is not the pertinent language

that is required.”

Q. And what did you tell her?

A. I told her, “Well, then we need to get down to fixing this and I’ll, you

know, make it right. And I won’t charge you anything extra, and I’ll try to talk

to Mr. Aleo.

The factual statements and testimony were sufficient to establish the affirmative

defense that the action was barred by the statute of limitations at Tenn. Code Ann. § 28-3-

104(a) (2) because it was not filed within one year of Ms. Aleo’s learning that she would not

receive the pension benefits, thereby negating an essential element of Ms. Aleo’s claim. See

Hannan, 270 S.W.3d at 5. Ms. Aleo was, consequently, required to produce evidence

4

establishing a genuine issue of material fact relative to the date she discovered she had been

injured. Id.

The statement filed by Ms. Aleo in response to the motion and supporting materials

responded to specific statements in Attorney Weyant’s statement and asserted eleven

additional “disputed material facts.” We have reviewed her response and nothing contained

therein disputes the portions of Attorney Weyant’s statement of material facts or the

deposition testimony cited above establishing that she learned of her loss on June 27, 2008.

Rather, the “disputed material facts” are largely argumentative and/or conclusory statements

in support of her contention that Attorney Weyant committed legal malpractice when he

failed to file a motion to set aside the final judgment pursuant to Tenn. R. Civ. P. 60.02.

Having failed to create a genuine issue of fact relative to the date she discovered her injury,

the affirmative defense was established and the grant of summary judgment on this issue was

“To meet its burden of production and shift the burden to the nonmoving party, the moving party 4

must either affirmatively negate an essential element of the nonmoving party's claim or establish an

affirmative defense.” Hannan, 270 S.W.3d at 5 (citing Byrd v. Hall, 847 S.W.2d 208, at 215 n.5 (Tenn.

1993)) (emphasis added).

-6-
proper. See Cherry v. Williams, 36 S.W.3d 78 (Tenn. Ct. App. 2000) ; Tenn. R. Civ. P.

5

56.04.

Ms. Aleo asserts that the statute of limitations should not be measured from June 27,

2008 because she only received “inquiry notice” from the JAG officials that she would not

receive the pay as she had negotiated with Mr. Aleo, and that Attorney Weyant’s statement

to her that he would “fix it” was an “admitted reassurance by [Attorney Weyant that]

reasonably removed even an ‘inquiry notice’ of [Ms. Aleo].” Ms. Aleo also contends that

Attorney Weyant concealed her loss from her by promising to file a motion pursuant to Tenn.

R. Civ. P. 60.02 in 2008 and continuing to make this promise as late as February or March

of 2009; consequently, she asserts that she did not discover her loss until June 2010, when

she learned that the time to file the Rule 60 motion had expired. These contentions are

without merit.

We do not understand Ms. Aleo’s characterization of “inquiry notice.” In a

malpractice action, the critical inquiry for statute of limitations purposes is when the plaintiff

discovered her injury; that is the date at which the cause of action accrues. John Kohl & Co.

P.C., 977 S.W.2d at 532; Spar Gas, Inc. v. McCune, 908 S.W.2d 400, 403–404 (Tenn. Ct.

App. 1995). The record is clear that she learned of her injury on June 27, 2008 and that she

informed Mr. Weyant of the loss shortly thereafter. As noted in Spar Gas, Inc., “a plaintiff

cannot be permitted to wait until he knows all of the injurious effects or consequences of an

actionable wrong before he brings suit on that wrong.” Spar Gas, Inc., 908 S.W.2d at 403.

Any representation Attorney Weyant made to Ms. Aleo that he would “fix it” by filing a Rule

60 motion was insufficient to operate to toll the statute of limitations. The law is clear that

it is the date a plaintiff learns of the injury that determines the start date for statute of

limitations purposes, not the date that the injury is quantified.

Lastly, Ms. Aleo asserts that the doctrine of equitable estoppel should be applied to

this case to prevent the running of the statute of limitations because Attorney Weyant “misled

her from the outset in 2008 all the way through June 2010, preventing her from recognizing

her injury which he promised to ‘fix’ and ‘make it right.’” In Redwing v. Catholic Bishop

for Diocese of Memphis our Supreme Court discussed equitable estoppel, stating:

In the context of a defense predicated on a statute of limitations, the doctrine

of equitable estoppel tolls the running of the statute of limitations when the

“To be entitled to summary judgment, the moving party must affirmatively negate an essential

5

element of the non-moving party’s claim or establish an affirmative defense that conclusively defeats the

non-moving party’s claim.” Cherry v. Williams, 36 S.W.3d 78, 82–83 (Tenn. Ct. App. 2000).

-7-
defendant has misled the plaintiff into failing to file suit within the statutory

limitations period. Fahrner v. SW Mfg., Inc., 48 S.W.3d at 145; Ingram v.

Earthman, 993 S.W.2d 611, 633 (Tenn. Ct. App. 1998). When the doctrine of

equitable estoppel is applicable, it prevents a defendant from asserting what

could be an otherwise valid statute of limitations defense. Hardcastle v.

Harris, 170 S.W.3d 67, 84 (Tenn. Ct. App. 2004). The party invoking the

doctrine of equitable estoppel has the burden of proof. Hardcastle v. Harris,

170 S.W.3d at 85. Thus, whenever a defendant has made out a prima facie

statute of limitations defense, the plaintiff must demonstrate that the defendant

induced him or her to put off filing suit by identifying specific promises,

inducements,suggestions, representations, assurances, or othersimilar conduct

by the defendant that the defendant knew, or reasonably should have known,

would induce the plaintiff to delay filing suit. Fahrner v. SW Mfg., Inc., 48

S.W.3d at 145; Hardcastle v. Harris, 170 S.W.3d at 85.

Redwing v. Catholic Bishop for Diocese of Memphis, 363 S.W.3d 436, 460 (Tenn. 2012).

This court in Hardcastle noted that “[e]vidence of vague statements or ambiguous behavior

by a defendant will not carry the day for a plaintiff asserting equitable estoppel.” Hardcastle,

170 S.W.3d at 85.

Ms. Aleo relies on the statements made by Attorney Weyant, that he would “fix it” or

“make it right”, to meet her burden to establish that she was induced to put off filing her suit.

The statements relied upon by Ms. Aleo, however, do not constitute specific promises or

assurances that would induce Ms. Aleo to delay filing a malpractice action; rather, they relate

to efforts to change the final decree. The record is devoid of any evidence that Attorney

6

Weyant induced Ms. Aleo not to file suit against him and that the doctrine of equitable

estoppel should apply to prevent the statute of limitations from running.

B. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

To prove a claim of negligent infliction of emotional distress, a plaintiff must prove:

(1) the defendant owed the plaintiff a duty of care; (2) defendant breached the breach of duty

of care; (3) the plaintiff suffered an injury or loss; (4) causation; and (5) that plaintiff

Ms. Aleo acknowledges as being undisputed several facts which show that Attorney Napolitano 6

took actions beginning in October 2008 to assist her in correcting the final decree, including preparing an

affidavit for Attorney Weyant to sign in support of a Rule 60 motion, meeting with Mr. Aleo in an effort to

assist him in signing a new marital dissolution agreement, and exchanging correspondence and negotiating

with Mr. Aleo’s counsel relative to the retirement benefits. These facts show that efforts were being made

to correct the final decree and run counter to a determination that Attorney Weyant misled her with respect

to efforts he was taking to amend the final decree. 

-8-
suffered a serious or emotional injury as a result of the defendant’s conduct. Rogers v.

Louisville Land Co., 367 S.W.3d 196, 206 (Tenn.2012). At issue in this appeal is whether

7

the record supports the trial court’s holding that there was no evidence that Ms. Aleo suffered

a serious mental injury as a result of Attorney Weyant’s conduct.

Attorney Weyant’s statement of undisputed facts included the following, relative to

his assertion that Ms. Aleo did not suffer a serious mental injury:

21. Ms. Aleo has not sought the services of a mental health professional as a

result of her divorce.

22. Ms. Aleo has not been prescribed or taken any medication for depression

or anxiety as a result of her divorce or any situation related thereto.

Ms. Aleo’s deposition testimony regarding serious mental injury was as follows:

Q. Are you presently under the care of any psychologist or psychiatrist?

A. No, sir.

Q. Have you been under the care of a psychologist or psychiatrist since

February 2008?

A. No.

The Supreme Court in Rogers provided a non-exhaustive list of factors to support a showing that

7

the plaintiff has suffered a serious mental injury:

(1) Evidence of physiologicalmanifestations of emotional distress, including but not limited

to nausea, vomiting, headaches, severe weight loss or gain, and the like;

(2) Evidence of psychological manifestations of emotional distress, including but not limited

to sleeplessness, depression, anxiety, crying spells or emotional outbursts, nightmares, drug

and/or alcohol abuse, and unpleasant mental reactions such as fright, horror, grief, shame,

humiliation, embarrassment, anger, chagrin, disappointment, and worry;

(3) Evidence that the plaintiff sought medical treatment, was diagnosed with a medical or

psychiatric disordersuch as post-traumatic stress disorder, clinical depression, traumatically

induced neurosis or psychosis, or phobia, and/or was prescribed medication;

(4) Evidence regarding the duration and intensity of the claimant's physiologicalsymptoms,

psychological symptoms, and medical treatment;

(5) Other evidence that the defendant's conduct caused the plaintiff to suffer significant

impairment in his or her daily functioning; and

(6) In certain instances, the extreme and outrageous character of the defendant's conduct is

itself important evidence of serious mental injury.

Rogers, 367 S.W.3d at 209-10.

-9-
* * *

Q. Have you ever taken any antidepressants?

A. Yes.

Q. Who is prescribed those?

A. It was like maybe 10 years ago, so it’s –it was at the Blanchfield

Army Hospital.

Q. You’re not presently taking any?

A. No.

Q. You haven’t since - -

A. I felt they weren’t doing any good, so I didn’t take them.

Q. You haven’t taken any since February of 2008.

A. No.

This evidence was sufficient to negate an essential element of Ms. Aleo’s claim, i.e.,

that she suffered a serious mental injury due to the actions of Attorney Weyant, thereby

shifting the burden to her to produce evidence establishing a genuine issue of material fact

that she suffered a serious mental injury. See Hannan, 270 S.W.3d at 5.

In her response, Ms. Aleo stated that facts 21 and 22 from Attorney Weyant’s

statement of material facts, quoted above, were undisputed;she did not address the testimony

from her deposition and did not assert any additional disputed fact relative to any element of

her claim for negligent infliction of emotional distress. Having failed to create a genuine

issue of material fact that she suffered a severe mental injury, summary judgment was proper

on that claim.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed.

________________________________

RICHARD H. DINKINS, JUDGE

-10-