IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

August 23, 2005 Session

RODNEY WILSON, ET AL. v. GERALD W. PICKENS

Direct Appeal from the Circuit Court for Shelby County

No. 301614 T.D. John R. McCarroll, Jr., Judge

No. W2004-02966-COA-R3-CV - Filed October 18, 2005

The trial court determined Plaintiffs had standing to bring this malpractice action against their

attorney and that they properly filed the action within the statute of limitations under the discovery

rule. The trial court apportioned fault between Plaintiffs, Defendant, and nonparty Shelby County.

The court awarded Plaintiffs damages for costs incurred, but did not award damages for lost property

value. We affirm the trial court’s determination that Plaintiffs had standing and brought their action

within the limitations period. We reverse the trial court’s finding regarding causation, and hold

Plaintiffs were at least 50% at fault in this case. Judgment for Plaintiffs is reversed.

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

Remanded

DAVID R.FARMER,J., delivered the opinion of the court, in which W.FRANK CRAWFORD,P.J.,W.S.,

and ALAN E. HIGHERS, J., joined.

Sam F. Cole, Jr., Memphis, Tennessee, for the appellant, Gerald W. Pickens.

Mimi Phillips and R. H. Chockley, Memphis, Tennessee, for the appellees, Rodney Wilson and

Robbie Wilson.

OPINION

In 1975, Plaintiffs Rodney Wilson (Mr. Wilson) and Robbie Wilson (Ms. Wilson,

collectively, “the Wilsons”) purchased a small house situated on an approximately seven-acre parcel

of land in an unincorporated area of northern Shelby County. The property is zoned within the

Shelby County Agricultural (AG) District, which requires a minimum building lotsize of two acres.

The Wilsons never lived in the house, but rented to several tenants before renting the house to

Marshall and Rosa Law (“the Laws”) in 1984. In 1985, the Wilsons decided to build an additional

home (“the big house”), for use as their residence, on the land. They obtained the necessary permits

from Shelby County and completed construction of the big house in August 1986. Shelby County
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assigned a new house number, street address, and separate tax parcel number to the big house. A

few months later, a tornado destroyed the big house. The Wilsons again received permits from

ShelbyCounty and rebuilt the big house in 1988. When the house was nearly complete, an unknown

person, presumably a Shelby County official, apparently saw the house under construction and stated

to Mr. Wilson that he could not build a house on the property. Mr. Wilson responded that he already

had a permit, and no further action was taken by either the Wilsons or Shelby County. 

In late 1991 or early 1992, the Wilsons decided to sell the original house to the Laws and

hired their attorney, Gerald W. Pickens (Mr. Pickens), to handle the sale. Based on a survey

completed in 1985, which divided the property into a 1.01 acre lot and a 6.069 acre lot and showed

the location of the original house and the Wilsons’ proposed new house, Mr. Pickens prepared a real

estate note, deed of trust, and contract conveying the original small house and 1.01 acres to the Laws,

with title being “conveyed subject to all restrictions, easements and covenants of record, and subject

to zoning ordinances or laws of any governmental authority.” The warranty deed conveying the

property to the Laws was executed on February 15, 1992. 

In late 1997 or early 1998, the Laws decided to renovate their home and sought the

appropriate building permits from Shelby County. They were denied the permits and construction

loans, however, because their lot did not meet the minimum two acres necessary for a building lot

on the property, which was zoned AG. The Laws retained legal counsel who advised the Wilsons

by letter of April 14, 1998, that they had “illegally subdivided [their] property and sold an illegal lot”

to the Laws. The Laws filed an action for breach of warranty against the Wilsons, and the Wilsons

filed suit against Mr. Pickens for legal malpractice on March 31, 1999. The Wilsons subsequently

settled the action brought against them by the Laws by formally subdividing the property and

conveying an additional one-acre parcel to the Laws. 

In their complaint, the Wilsons alleged Mr. Pickens’ professional negligence caused damages

arising from the sale of an illegal lot. They prayed for a judgment of indemnity ordering Mr. Pickens

to pay all sums necessary to rectify the illegal sale and to defend the lawsuit brought against them

by the Laws. The trial court heard the matter in April 2004 and entered judgment on June 18, 2004.

The trial court found that the Wilsons had standing to sue Mr. Pickens and that they had properly

filed their claim within the statute of limitations under the discovery rule. The trial court also found

Mr. Pickens liable for damages arising from professional malpractice. However, the trial court

apportioned 20% of fault to Shelby County for issuing the Wilsons building permits in violation of

zoning regulationsin1985 and 1988. The trial courtfurther apportioned 20% of fault to the Wilsons,

who were presumed to know the zoning laws and due to their notice from the unidentified Shelby

County employee that they could not build their house on the lot. The trial court apportioned the

remaining 60% of fault to Mr. Pickens, and entered a judgment of $12,242.20 against Mr. Pickens

for costs associated with the re-subdivision of the property and legal fees. However, the trial court

found the Wilsons had failed to prove damages resulting from the loss of one acre of property. Mr.

Pickens filed a timely notice of appeal to this Court. 
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Issues Presented

Mr. Pickens presents the following issues, as we slightly restate them, for our review:

(1) Whether the trial court erred in determining that the Wilsons had standing to

sue Mr. Pickens.

(2) Whether the trial court erred by finding that theWilsons filed their suit within

the statute of limitations under the discovery rule.

(3) Whether the trial court erred by determining the Wilsons’ damages were

proximately caused by professional malpractice.

(4) Whether the trial court erred in finding the Wilson’s were not at least 50% at

fault.

The Wilsons raise the following additional issues:

(1) Whether the trial court erred in failing to award damages for lost value to the

Wilsons’ property.

(2) Whether the trial court erred in not apportioning 100% of fault to Mr.

Pickens.

Standard of Review

We review the trial court’s findings of fact de novo upon the record with a presumption of

correctness. Tenn. R. App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000). We will

not reverse the trial court’s factual findings unless they are contrary to the preponderance of the

evidence. Id. Insofar as the trial court’s determinations are based on its assessment of witness

credibility, appellate courts will not reevaluate that assessment absent evidence of clear and

convincing evidence to the contrary. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002). Our

review of the trial court’s conclusions on matters of law, however, is de novo with no presumption

of correctness. Taylor v. Fezell, 158 S.W.3d 352, 357 (Tenn. 2005). We likewise review the trial

court’s application of law to the facts de novo, with no presumption of correctness. State v. Thacker,

164 S.W.3d 208, 248 (Tenn. 2005). 

Standing

We turn first to Mr. Pickens’ contention that the Wilsons did not have standing to bring their

cause of action against Mr. Pickens for professional malpractice. Mr. Pickens’ argument, as we

understand it, is that, assuming the sale of real property to the Laws was in violation of the zoning
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regulations, it was the Laws and not the Wilsons who suffered damages and had standing to bring

a cause of action against Mr. Pickens. We disagree.

In a legal malpractice case, a plaintiff has been injured where there has been the imposition

of a liability against him or he has suffered the loss of “a legal right, remedy or interest.” Kohl &

Co. v. Dearborn & Ewing, 977 S.W.2d 528, 532 (Tenn. 1998). An injury also occurs where the

plaintiff is “forced to take some action or otherwise suffer ‘some actual inconvenience,’ such as

incurring an expense, as a result of the defendant’s negligent or wrongful act.” Id. (quoting State v.

McClellan, 85 S.W. 267, 270 (Tenn. 1905)). 

In this case, the Wilsons contend that they conveyed property in violation of the zoning and

subdivision regulations because Mr. Pickens failed to inform them of these regulations. They allege

that Mr. Pickens’ failure to inform them of the zoning and subdivision restrictions constitutes

professional malpractice. In their complaint, the Wilsons sought a judgment of indemnity against

any judgment which might be entered against them in favor of the Laws and for amounts necessary

to rectify the regulatory violation. The Laws did, in fact, bring a cause of action against the Wilsons,

which the Wilsons settled by properly subdividing the property and conveying an additional acre to

the Laws. 

Although the questions of damages, if any, and proximate cause were matters to be

adjudicated at trial, the Wilsons alleged both injury and causation in their complaint. Further, it is

undisputed that the Wilsons, and not the Laws, were Mr. Pickens clients. Without opining on

whether the Laws would have had standing to bring a cause of action against Mr. Pickens, we agree

with the trial court that the Wilsons had standing to bring this lawsuit.

Statute of Limitations

Tennessee Code Annotated § 28-3-104(a)(2) provides a limitations period of one year for

legal malpractice actions. The limitations period, however, is subject to the discovery rule, under

which an action accrues from the time the plaintiff knows or should know, in the exercise of

reasonable care, that he has sustained an injury as a result of the defendant’s wrongful act. Kohl &

Co., 977 S.W.2d at 532. The plaintiff’s knowledge of his injury may be established by actual or

constructive knowledge. Id. Actual knowledge of legal malpractice may be found, for example,

when the plaintiff is informed by another attorney that malpractice has occurred. Id. Constructive

knowledge may be found, however, where the plaintiff reasonably is aware of facts that reasonably

should put him on notice that he has been injured as a result of the defendant’s conduct. Id. at 533.

It is not necessary that the plaintiff know that the defendant’s conduct was, in fact, below the

standard of care, and the plaintiff may not delay the filing of a suit until all the consequences of the

alleged malpractice are actually known. Id. Thus, the plaintiff must be aware of facts which

reasonably put him on notice that he has suffered an injury and that the injury resulted from the

alleged professional negligence. 

Significantly, the foregoing requires an actual injury. As this Court has noted, 
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the rules governing when a person suffers legally cognizable injury from litigation

malpractice must take into account that not every misstep leads to a fall. Because

negligence without injury is not actionable, the legal malpractice statute of

limitations does not begin to run until an attorney’s negligence has actually injured

the client.

Cherry v. Williams, 36 S.W.3d 78, 84 (Tenn. Ct. App. 2000). Without an actual injury or damages

which can be redressed by the court, a person cannot establish standing to bring his action. E.g.,

Petition of Youngblood, 895 S.W.2d 322, 326 (Tenn. 1995)(citations omitted).

In this case, Mr. Pickens asserts the Wilsons’ cause of action accrued on February 7, 1992,

the day they contracted to sell the 1.01 acre lot to the Laws. He asserts that the Wilsons’ action is

barred because they “were required, as a matter of law, to have knowledge of the laws applicable to

the land they owned.” He contends that the Wilsons reasonably should have known that a two-acre

minimum was required to subdivide the property to the Laws at the time of the sale in 1992. The

Wilsons, on the other hand, contend they were unaware of any problem with the conveyance to the

Laws until notified by the Laws’ legal counsel in April 1998. 

Mr. Pickens’ argument, as we perceive it, goes to causation rather than discovery. Regardless

of whether Mr. Pickens’ alleged failure to advise the Wilsons of the zoning and subdivision

requirements was the proximate cause of the Wilsons’ injury, the Wilsons suffered no injury until

April 14, 1998. The statute of limitations did not begin to run until the alleged negligence resulted

in actual damages.

Causation and Fault

We next turn to whether Mr. Pickens alleged failure to inform the Wilsons of the Shelby

County zoning and subdivision requirements was the proximate cause of the Wilsons’ injury. Mr.

Pickens asserts that he advised the Wilsons that “it was necessary to have two acres in a subdivided

lot or a four acre unsubdivided lot to obtain a building permit.” The Wilsons, however, assert Mr.

Pickens never discussed the legality of the transaction, building permit issues, or subdivision or lot

size restrictions. In the absence of any documentary evidence, the factual determination of whether

Mr. Pickens advised the Wilsons of these requirements and regulations requires a determination of

credibility. Implicit in the trial court’s judgment is a credibility determination in favor of the

Wilsons. There is no evidence which would warrant reversal of the trial court’s credibility

assessment in this case. 

Mr. Pickens further asserts, however, that the Wilsons knew or should have known of the

zoning and subdivision requirements and that the Wilsons are at least 50% at fault in this case. The

apportionment of fault in a non-jury case is a question of fact which we review with a presumption

of correctness. E.g., Lewis v. State, 73 S.W.3d 88, 95 (Tenn. Ct. App. 2001). However, in light of

Mr. Wilson’s testimony in this case, we respectfully disagree with the trial court that the Wilsons

were not at least 50% at fault for their injuries.
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In his deposition, Mr. Wilson testified that when he built the big house in 1985, he had the

property surveyed and “the house that [the Laws] [have] was on the one acre, and [his] house at that

time was 6.8 acres.” He further testified that he knew he was required to have a lot of at least four

acres in order to build a house. Additionally, Mr. Wilson testified that he knew the Laws intended

to build on their property, and that the Laws would not have bought the property had they realized

they were “going to have a problem with it.” 

Based on our review of the record, we are convinced that at the time the property was

conveyed to the Laws, neither the Laws nor the Wilsons were in fact aware of the specific

requirements of the Shelby County Code pertaining to subdivision minimum lot size requirements.

We do not believe Mr. Wilson intended an illegal subdivision. However, according to Mr. Wilson’s

deposition, Mr. Wilson knew that a four-acre minimum was required to build on his lot. Which

leads us to question the reasonableness of Mr. Wilson’s assertion that he believed he could sell the

Laws a one-acre lot and that the Laws would be permitted to build on that lot and not “have a

problem with it.” Moreover, we note that the Wilsons do not allege that they inquired about the

zoning or subdivision regulations or that Mr. Pickens gave them incorrect information regarding the

regulations. Rather, they assert only that Mr. Pickens should have advised them of the subdivision

regulations, that he failed to do so, and that this failure proximately caused their injuries.

Mr. Wilson unambiguously testified in his deposition, however, that he knew the Laws

intended to build on the conveyed lot and that he knew more than one acre was required to obtain

a building permit. In light of this knowledge, the evidence preponderates against the trial court’s

determination that the Wilson’s were not at least 50% at fault for their injuries in this case, despite

the alleged negligence of Mr. Pickens. Although, at the time of the sale, the Wilsons arguably were

not aware of the subdivision regulations, or even that the sale resulted in a subdivision, Mr. Wilson

knew that one acre was not sufficient for the intended use of the lot. 

Additionally, we agree with theWilsons that the comment by the unidentified Shelby County

inspector and the issuance by Shelby County of a building permit to the Wilsons in 1985 and 1988

did not make Shelby County liable for the improper subdivision of the Wilson’s property in 1992.

When Mr. Wilson applied for permits to build on over four acres of land in 1985 and 1988, Shelby

County was under no duty to advise him that, if he decided to subdivide his property into building

lots at a future time, two-acre lots would be required. 

Holding

The Wilsons have failed to carry their burden of proof to demonstrate that Mr. Pickens was

more than 50% at fault for the injuries they sustained. We accordingly reverse the judgment of the

trial court apportioning 60% of fault to Mr. Pickens. Because the Wilsons were at least 50% at fault

for the damages sustained in this case, we reverse the award of damages to the Wilsons. We

additionally vacate the apportionment of fault to Shelby County. In light of the foregoing, the
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remaining issues are pretermitted. Costs of this appeal are taxed to the Appellees, Rodney Wilson

and Robbie Wilson.

___________________________________ 

DAVID R. FARMER, JUDGE