IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

May 6, 2020 Session

OUTPOST SOLAR, LLC ET AL. v. HENRY, HENRY & UNDERWOOD, P.C. 

ET AL.

Appeal from the Circuit Court for Giles County

No. CC-11515 James G. Martin III, Judge

No. M2019-00416-COA-R3-CV

A limited liability company sued its former attorney and his law firm for legal malpractice. 

The defendants moved for summary judgment. The trial court found that the action was 

barred by the applicable statute of limitations. Because the LLC’s cause of action accrued 

more than one year before suit was filed, we affirm. 

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

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which ANDY D. BENNETT,

J., joined. RICHARD H. DINKINS, J., not participating.

Jay S. Bowen and Will Parsons, Nashville, Tennessee, for the appellant, Outpost Solar, 

LLC.

Winston S. Evans, Nashville, Tennessee, for the appellees, Robert C. Henry and Henry, 

Henry & Underwood, P.C.

OPINION

I.

A.

BNL Technical Services, LLC (“BNL”) and Richland, LLC formed a joint venture 

to design and manufacture solar energy systems; they named their joint venture Outpost 

Solar. Richland’s attorney, Robert Henry, prepared the necessary legal documents to create 

Outpost Solar, LLC. Beginning in January 2009, Mr. Henry also served as Outpost Solar’s 

03/17/2021
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registered agent and counsel.1In August 2011, BNL acquired full ownership of Outpost 

Solar. 

Wilson Stevenson, sole owner of BNL, served as president of Outpost Solar. He 

arranged to lease a 44,000-square-foot building in Pulaski, Tennessee, for Outpost Solar’s 

operations. He negotiated the lease terms with Dan Speer, executive secretary for the 

Industrial Development Board of the City of Pulaski and Giles County, Tennessee (the 

“IDB”). Mr. Henry, who was also the attorney for the IDB, drafted the lease based on the 

terms negotiated by the parties. The lease had an initial five-year term, with the option to 

renew for three additional five-year periods. Outpost Solar also had an option to lease

adjacent property with the IDB’s consent. 

Mr. Henry terminated his attorney-client relationship with Outpost Solar at the end 

of January 2012. Shortly thereafter, Dan Speer and the chairman of the IDB exchanged 

emails discussing the expansion plans of another industrial park tenant. The tenant had 

expressed interest in using the property currently subject to Outpost Solar’s lease option. 

The IDB asked Outpost Solar to waive its option. Discussions ensued, but the parties never 

reached an agreement on the terms of a waiver. 

In addition to the option dispute, other issues arose between the IDB and Outpost 

Solar. Of particular relevance here, on April 6, 2012, Mr. Henry wrote to Mr. Stevenson:

Our firm represents the [IDB]. It is our understanding a lien has been 

filed of record against Outpost Solar, LLC by Comfort Supply, Inc. This lien 

and any additional liens filed of record places you in direct violation of 

Section 5.02 of your lease agreement with IDB. This violation requires your 

immediate attention for resolution.

While this matter is in dispute, one option for you is to obtain and 

record a bond to indemnify you against the lien pursuant to T.C.A. § 66-11-

142.

At your earliest convenience, please advise how you plan to resolve 

this matter.

Mr. Stevenson referred the matter to Outpost Solar’s attorney, who responded to 

Mr. Henry, in relevant part,

 

1 The nature of the relationship between Outpost Solar and Mr. Henry during this time is disputed. 

But, for purposes of summary judgment, Mr. Henry does not dispute that he represented Outpost Solar 

between January 2009 and February 2012.
3

Outpost Solar is currently engaged in settlement negotiations with . . . 

Comfort Supply, Inc. . . . in an effort to satisfy the debt and release the lien.

Given the extended time frame of the settlement negotiations, Outpost 

Solar is in the process of obtaining a bond to indemnify against the lien . . . . 

I will provide you with a copy of the bond immediately upon receipt.

Outpost Solar’s attorney later provided Mr. Henry with a copy of the full release of lien. 

Throughout the spring and summer of 2012, attorneys for both sides discussed a 

variety of lease issues, both large and small, such as waiver of the lease option, the location 

of the property line, and responsibility for remedying some defective painting on the leased 

premises. These discussions culminated in another written notice of default in the fall. 

On October 11, 2012, Mr. Henry notified Mr. Stevenson that Outpost Solar was 

again in direct violation of the lease. The IDB asserted several breaches and requested that 

Outpost Solar cure these deficiencies within the time frame provided in the lease. 

Mr. Henry warned Mr. Stevenson, that should Outpost Solar fail to resolve these issues 

during the cure period, the IDB could choose to terminate the lease. Mr. Henry also 

informed Mr. Stevenson that the IDB would not provide the necessary consent for Outpost 

Solar to exercise the option to lease adjacent land. 

Even so, Outpost Solar notified the IDB that it was exercising the option. Mr. Henry 

responded that Outpost Solar had not resolved all the deficiencies outlined in his October 

letter and that the lease was terminated. Outpost Solar vacated the premises the following 

May.

B.

Outpost Solar originally filed this legal malpractice action against Mr. Henry and 

his law firm, Henry, Henry & Underwood, P.C., on October 11, 2013. With the court’s 

permission, Outpost Solar later filed an amended complaint adding BNL as a plaintiff. 

Because BNL is not a party to this appeal, we focus on Outpost Solar’s claims. 

Outpost Solar alleged that it had an attorney-client relationship with Mr. Henry

when he drafted the lease. And the attorney had a continuing duty not to “act adversely to 

Outpost Solar” after the attorney-client relationship ended, especially in “matters 

substantially related to his representation of the company.” As alleged in the amended 

complaint, Mr. Henry committed legal malpractice by “violat[ing] his duties to [a] former 

client, Outpost Solar, as set forth in Rule 1.9 of Tennessee’s Rules of Professional Conduct, 

when he devised and implemented the scheme to constructively evict Outpost Solar and to 
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deprive Outpost Solar of the right contained in the very Lease he had drafted on Outpost 

Solar’s behalf.”

2

 

The amended complaint also alleged that Mr. Henry’s October 11, 2012 letter was 

the “opening salvo in [Mr.] Henry’s and the IDB’s campaign to constructively evict 

Outpost Solar from the Leased Property.” Outpost Solar was ultimately forced to vacate 

the premises. As a result, the company’s “business was destroyed and it lost the 

tremendous investments made in improving the Building[,]” a loss of over two million 

dollars. 

Mr. Henry moved for summary judgment on the ground that Outpost Solar’s claims

were barred by the one-year statute of limitations for legal malpractice. See Tenn. Code 

Ann. § 28-3-104(c)(1) (2017). In support of his motion, Mr. Henry submitted a statement 

of undisputed facts, the deposition of Mr. Stevenson, and his own affidavit. Mr. Henry 

agreed—solely for purposes of summary judgment—that in representing the IDB against 

Outpost Solar in connection with the lease, he breached his duty to his former client. But 

he argued that the correspondence between the parties during the spring and summer of 

2012 showed that, Outpost Solar was aware of Mr. Henry’s adverse representation more 

than one year before suit was filed. 

Outpost Solar contended that there was no evidence that it had suffered any harm 

from these earlier interactions. And it denied that the previous exchanges were adversarial. 

At the very least, Outpost Solar maintained that a factual dispute existed as to when 

Mr. Henry began acting adversely. 

The trial court agreed with Mr. Henry. The court ruled that Outpost Solar knew or 

should have known that it had been injured by Mr. Henry’s alleged wrongful conduct 

before October 11, 2012. So it granted summary judgment in favor of the defendants and 

dismissed Outpost Solar’s claims. 

 

2 Rule 1.9 of our Rules of Professional Conduct provides, in relevant part,

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent 

another person in the same or a substantially related matter in which that person’s 

interests are materially adverse to the interests of the former client unless the former 

client gives informed consent, confirmed in writing.

TENN. SUP. CT. R. 8, Rule 1.9(a).
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II.

A.

Summary judgment may be granted only “if the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if any, 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. Summary judgment motions are particularly 

well-suited for defenses based on statutes of limitations because the facts material to the 

defense are often undisputed. Cherry v. Williams, 36 S.W.3d 78, 83 (Tenn. Ct. App. 2000). 

A grant of summary judgment is appropriate “when the facts and the reasonable inferences 

from those facts would permit a reasonable person to reach only one conclusion.” Giggers 

v. Memphis Hous. Auth., 277 S.W.3d 359, 364 (Tenn. 2009).

The statute of limitations is an affirmative defense. TENN. R. CIV. P. 8.03. As such, 

a party moving for summary judgment on the ground that a claim is barred by the statute 

of limitations has the burden of establishing all of its elements. Carr v. Borchers, 815 

S.W.2d 528, 532 (Tenn. Ct. App. 1991). Satisfying this burden requires more than a 

“conclusory assertion that summary judgment is appropriate”; rather, the movant must set 

forth specific material facts as to which the movant contends there is no dispute. Rye v. 

Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015).

If a motion for summary judgment is properly supported, the nonmoving party must 

then come forward with something more than the allegations or denials of its pleadings. 

Id. at 265. The nonmoving party must, “by affidavits or one of the other means provided 

in Tennessee Rule 56, ‘set forth specific facts’ at the summary judgment stage ‘showing 

that there is a genuine issue for trial.’” Id. (quoting TENN. R. CIV. P. 56.06).

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

of correctness on appeal. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008); 

Blair v. W. Town Mall, 130 S.W.3d 761, 763 (Tenn. 2004). We review the summary 

judgment decision as a question of law. Martin, 271 S.W.3d at 84; Blair, 130 S.W.3d at 

763. Thus, we review the record de novo and make a fresh determination of whether the 

requirements of Rule 56 of the Tennessee Rules of Civil Procedure have been met. Eadie 

v. Complete Co., 142 S.W.3d 288, 291 (Tenn. 2004); Blair 130 S.W.3d at 763.

B.

In considering a statute of limitations defense, we typically examine three 

interrelated elements: “the length of the limitations period, the accrual of the cause of 

action, and the applicability of any relevant tolling doctrines.” Redwing v. Catholic Bishop 

for Diocese of Memphis, 363 S.W.3d 436, 456 (Tenn. 2012). But here, the only element 

in dispute is when the cause of action accrued. The parties agree that the one-year statute 
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of limitations for legal malpractice actions applies to Outpost Solar’s claims. See Tenn.

Code Ann. § 28-3-104(c)(1). And Outpost Solar has not raised any relevant tolling 

doctrines. 

To determine when the cause of action accrued, we apply the discovery rule. Story 

v. Bunstine, 538 S.W.3d 455, 463 (Tenn. 2017). Under this rule, two distinct elements 

must be present before a legal malpractice cause of action accrues: injury and knowledge. 

John Kohl & Co. v. Dearborn & Ewing, 977 S.W.2d 528, 532 (Tenn. 1998). “[T]he 

plaintiff must suffer legally cognizable damage—an actual injury—as a result of the 

defendant’s wrongful . . . conduct.” Id. And, “the plaintiff must have known or in the 

exercise of reasonable diligence should have known that this injury was caused by the 

defendant’s wrongful . . . conduct.” Id. 

Tennessee’s accrual standard recognizes that “not every misstep leads to a fall.” 

Cherry, 36 S.W.3d at 84. “[N]egligence without injury is not actionable.” Id. So evidence 

of an actual injury is critical. See id. The clearest example of an actual injury is when a 

plaintiff has lost “a legal right, remedy[,] or interest” or incurred a new liability as a result 

of the wrongful conduct. John Kohl & Co., 977 S.W.2d at 532. But actual injury can occur 

under less obvious circumstances as well. A plaintiff has also suffered actual injury when

“forced to take some action or otherwise suffer ‘some actual inconvenience.’” Id. (quoting 

State v. McClellan, 85 S.W. 267, 270 (Tenn. 1905)). Incurring an expense, such as 

attorney’s fees or court costs, as a result of the defendant’s conduct qualifies as actual 

injury. See Cardiac Anesthesia Servs., PLLC v. Jones, 385 S.W.3d 530, 543-44 (Tenn. Ct. 

App. 2012). But our supreme court has cautioned that “the injury element is not met if it 

is contingent upon a third party’s actions or amounts to a mere possibility.” John Kohl & 

Co., 977 S.W.2d at 532. 

Outpost Solar argues that the company suffered no legally cognizable damage until 

May 2013, when it was forced to vacate the leased premises. Conversely, Mr. Henry takes 

the position that Outpost Solar suffered legally cognizable damage in the spring of 2012 

when it was forced to respond to his demand to cure a previous breach. We agree with 

Mr. Henry.

It is undisputed that on April 6, 2012, Mr. Henry sent a letter to Wilson Stevenson

notifying him that the Comfort Supply lien put Outpost Solar “in direct violation of [the 

lease].” On behalf of the IDB, Mr. Henry demanded an immediate resolution. And on 

May 3, Outpost Solar, through its attorney, responded that it was attempting to negotiate a 

release of lien and, in the meantime, was “in the process of obtaining a bond to indemnify 

against the lien.” A month later, Outpost Solar’s attorney provided Mr. Henry with a full 

release of the lien and explained that the release was “en route to be recorded.” Outpost 

Solar’s actions—engaging an attorney, obtaining a bond, and recording a release—qualify 

as legally cognizable damage. See id. at 533 (finding plaintiffs suffered an actual injury 

when “they began to incur expenses, or at least had to take some action”); Spar Gas, Inc. 
7

v. McCune, 908 S.W.2d 400, 403 (Tenn. Ct. App. 1995) (acknowledging that cost of hiring 

an attorney constituted actual injury); Denley v. Smith, No. 48, 1989 WL 738, at *3-4 

(Tenn. Ct. App. Jan. 9, 1989) (holding that cost of filing a reparation claim qualified as an 

actual injury). 

Outpost Solar complains that the letters do not constitute proof of actual injury. We 

disagree. Without dispute, Outpost Solar received Mr. Henry’s letters. And the company’s 

attorney responded with an explanation of Outpost Solar’s ongoing efforts to resolve the 

issue. That is enough to satisfy the actual injury requirement. See John Kohl & Co., 977 

S.W.2d at 533 (ruling that the plaintiffs suffered an actual injury when their accountant 

was forced to respond to an IRS inquiry). The amount of damage is irrelevant. Denley, 

1989 WL 738, at *3. “When any damages are known, the statute begins to run.” Id. at *4.

Outpost Solar also contends that these earlier interactions with Mr. Henry were 

completely unrelated to the wrongful conduct at issue. But the heart of the company’s 

legal malpractice claim is that Mr. Henry acted adversely to his former client in connection 

with the lease.3 Mr. Stevenson’s belief that the previous exchanges were simply 

“communications resolving outstanding items” is just that—his belief. Subjective beliefs 

cannot create a genuine issue of material fact. Fowler v. Happy Goodman Family, 575 

S.W.2d 496, 499 (Tenn. 1978). 

We find Outpost Solar’s attempts to focus solely on the events in October 

unavailing. In addition to the Comfort Supply lien dispute, Outpost Solar and the IDB 

were clearly at odds over the option to lease the adjacent property and responsibility for 

remedying some defective painting on the leased premises. Attorneys were involved on 

both sides. The only difference between the disputes in October and the previous ones is 

the amount of alleged harm that resulted. A plaintiff may not “delay filing [suit] until all 

injurious effects or consequences of the actionable wrong are actually known.” Wyatt v. 

A-Best, Co., 910 S.W.2d 851, 855 (Tenn. 1995). 

Even with actual injury, the knowledge component of the discovery rule must also 

be satisfied. See John Kohl & Co., 977 S.W.2d at 532; Cherry, 36 S.W.3d at 83. It is not 

necessary for the plaintiff to know “the specific type of legal claim” or “that the injury 

constituted a breach of the appropriate standard.” John Kohl & Co., 977 S.W.2d at 533. 

The key inquiry is whether the plaintiff had knowledge of sufficient facts to put a 

reasonable person on notice of the injury. Id.

 

3 At oral argument, Outpost Solar’s counsel confirmed that the legal malpractice claim was that 

Mr. Henry breached his duty not to be adverse to a former client. We note that conduct violating the Rules 

of Professional Conduct does not necessarily “constitute actionable malpractice.” See Lazy Seven Coal 

Sales, Inc. v. Stone & Hinds, P.C., 813 S.W.2d 400, 404 (Tenn. 1991) (referring to Tennessee’s Code of 

Professional Responsibility). Although the standard in the Rules has some relevance, “the standard of care 

is the particular duty owed the client under the circumstances of the representation,” which is not always

the standard specified in the Rules. See id. at 405. 
8

Outpost Solar should have been aware that Mr. Henry was acting adversely to its 

interests as a tenant as early as April 2012. Mr. Henry sent the initial notice of breach to 

Mr. Stevenson, president of Outpost Solar. The fact that later correspondence was directed 

to Outpost Solar’s attorneys is immaterial. See Lane-Detman, L.L.C. v. Miller & Martin, 

82 S.W.3d 284, 296 (Tenn. Ct. App. 2002) (reasoning that “[t]he knowledge of [a party’s]

counsel is imputed to [the party] under basic agency theory”). Mr. Stevenson’s belief that 

all the harm started after the October letter does not change the outcome. Outpost Solar 

“is deemed to have discovered the right of action if [it was] aware of facts sufficient to put 

a reasonable person on notice that [it had] suffered an injury as a result of wrongful 

conduct.” John Kohl & Co., 977 S.W.2d at 533 (citation omitted). That standard was met 

before October 11, 2012. 

III.

Viewing the evidence in the light most favorable to Outpost Solar, the undisputed 

facts show that Outpost Solar suffered an actual injury as a result of Mr. Henry’s alleged 

wrongful conduct and that it knew or should have known about that injury more than one 

year before suit was filed. Because Outpost Solar’s cause of action accrued before 

October 11, 2012, this action was untimely. So we affirm the trial court’s judgment. 

W. NEAL MCBRAYER, JUDGE