Edwin Dennison v. Glenna Overton ( 2014 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
June 17, 2014 Session
EDWIN DENNISON, ET AL. v. GLENNA OVERTON
Appeal from the Circuit Court for Blount County
No. L-17177 David R. Duggan, Judge
No. E2013-02290-COA-R3-CV-FILED-AUGUST 25, 2014
Edwin Dennison, Kaye Dennison, Joel Campbell, and Christine Campbell (“Plaintiffs”) sued
attorney Glenna Overton (“Defendant”) for legal malpractice. Defendant filed a motion for
summary judgment alleging that Plaintiffs’ claim was barred by the statute of limitations and
that Defendant’s actions were not the proximate cause of any loss to Plaintiffs. After a
hearing, the Circuit Court for Blount County (“the Trial Court”) granted Defendant summary
judgment after finding and holding, inter alia, that Plaintiffs had notice of the alleged
negligence and the fact that Plaintiffs had suffered an injury by August of 2009 and,
therefore, the suit filed on September 21, 2010 was barred by the applicable one year statute
of limitations. Plaintiffs appeal to this Court raising issues regarding whether the Trial Court
erred in finding their suit barred by the statute of limitations and whether the Trial Court
erred in finding that Plaintiffs could not prove that Defendant’s actions were the proximate
cause of any loss to Plaintiffs. We find and hold, as did the Trial Court, that Plaintiffs were
on notice of the alleged negligence and loss in August of 2009 and that their suit, therefore,
was barred by the statute of limitations. We affirm the Trial Court’s judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
Case Remanded
D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which J OHN W. M CC LARTY
and T HOMAS R. F RIERSON, II, JJ., joined.
Jerrold L. Becker, Knoxville, Tennessee, for the appellants, Edwin Dennison, Kaye
Dennison, Joel Campbell, and Christine Campbell.
Michael H. Meares and Charles B. Dungan, Jr., Maryville, Tennessee, for the appellee,
Glenna Overton.
OPINION
Background
Plaintiffs sued Defendant for attorney malpractice alleging, in pertinent part,
that Defendant was negligent in her representation of Plaintiffs in a lawsuit involving
nuisance. Specifically, in May of 2004, Plaintiffs and Defendant entered into a contract for
Defendant to represent Plaintiffs in the matter of Campbell, et al. v. Orr and Tipton
(“Campbell I”). A complaint was filed in Campbell I in December of 2004 and was
involuntarily dismissed without prejudice in August of 2007 for Plaintiffs’ failure to comply
with a discovery order. The August 14, 2007 order dismissing Campbell I taxed costs to
Plaintiffs.
Defendant filed a motion to set aside the judgment dismissing Campbell I,
which was denied. The order denying the motion to set aside the judgment dismissing
Campbell I also taxed costs to Plaintiffs.
The saving statute for re-filing Campbell I expired in August of 2008. Plaintiff
Edwin Dennison sent Defendant a letter dated August 19, 2009, which stated, in pertinent
part:
We all have been more than patient with you concerning our case. Our case
since the middle of 2007 has been going nowhere. All correspondence with
you had just about ceased since that time. You missed a court date of which
we had no knowledge and didn’t learn about for sometime afterwards. You
have assured us that our case was ok and all you had to is [sic] submit revised
documents to the court for it to be reopened. You informed Joel, that James
had signed the documents and that you would be submitting it along with
documentation of our most recent flood to the court last week. This was good
information but we still have not received any documentation to verify this
submission. Now yesterday, August 18, 2009 you had your secretary tell Joel
that James was going to sign the documents this weekend but this is the same
story each week. The bottom line is that nothing once again was submitted to
the court.
We cannot live under these circumstances much longer. For seven years we
have be [sic] terrorized by the elements since the developer altered the terrain
bringing this hardship to our door step. As I recently told you I am very angry
and that we need this case to be over so that we can go on with our lives.
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To do this it’s imperative that you correspond with us every week and that we
get copies of all correspondence concerning our case on a timely basis; that is
days not weeks or months later. Chris, Joel, Kaye and I would like a meeting
with you within five days of receipt of this letter and confirmation of the
meeting by 12 noon on Friday August 21st . Please do not post pone [sic] the
meeting the day before or the morning of as you have done with the last two
arranged meetings. We want an outlined game plan with dates and copies of
all correspondence concerning our case from Dec [sic] 2007 to the present.
Defendant re-filed Plaintiffs’ complaint in December of 2009 (“Campbell II”).
On March 16, 2010 the defendants in Campbell II were granted summary judgment, inter
alia, because Plaintiffs’ claim was barred by the statute of limitations.
Plaintiffs filed their complaint against Defendant for legal malpractice on
September 21, 2010. Defendant filed a motion for summary judgment alleging that
Plaintiffs’ claim was barred by the statute of limitations and that Defendant’s actions were
not the proximate cause of any loss to Plaintiffs. After a hearing, the Trial Court entered its
judgment on September 13, 2013 finding and holding, inter alia:
10. By letter dated August 19, 2009, Plaintiff, Edwin Dennison, wrote a
letter to Defendant stating, inter alia, the following:
1. “Last week I emailed you asking for a meeting among all
of us to discuss our case. In the past you will not answer your
phone messages and now you will not acknowledge emails. I
have now repeatedly asked for a meeting and you ignore each
request leaving me no other alternative but to send this by
certified mail.”
2. “We all have been more than patient with you concerning
our case.”
3. “Our case since the middle of 2007 has been going
nowhere.”
4. “All correspondence with you had just about ceased since
that time.”
5. “You missed a court date of which we had no knowledge
and didn't learn about for sometime afterwards.”
6. “You have assured us that our case was ok and all you
had to do is submit revised documents to the court for it to be
reopened.”
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7. “Now yesterday, August 18, 2009 you had your secretary
tell Joel that James was going to sign the documents this
weekend but this is the same story each week.”
8.“The bottom line is that nothing once again was submitted to
the court.”
9. “We cannot live under these circumstances much longer.”
10. “As I recently told you I am very angry and that
we need this case to be over so that we can go on with
our lives.”
11. “To do this it’s imperative that you correspond with us
every week and that we get copies of all correspondence
concerning our case on a timely basis; that is days not weeks or
months later.”
12. “Chris, Joel, Kay and I would like a meeting with you
within five days of receipt of this letter and confirmation of the
meeting by 12 noon on Friday, August 21st . Please do not post
pone [sic] the meeting the day before or the morning of as you
have done with the last two arranged meetings.” . . .
CONCLUSIONS OF LAW
Defendant has filed a motion for summary judgment alleging that there
is no genuine issue of material fact, and that she is entitled to judgment as a
matter of law, based upon the fact that Plaintiffs’ legal malpractice complaint
was not filed until more than one (1) year after any actions complained of, and
that accordingly the complaint is barred by the statute of limitations found at
Tenn. Code Ann. § 28-3-104(a)(2).
Plaintiffs have asserted the discovery rule and argued that the statute of
limitations does not begin to run until the client discovers, or by reasonable
diligence should have discovered, the injury, and that due to Defendant’s
alleged concealment from Plaintiffs of the facts concerning their litigation and
alleged misrepresentation to them, that they did not discover Defendant’s
professional malpractice until a new complaint in the underlying nuisance case
was dismissed on March 16, 2010 based upon the saving statute and the statute
of repose. Accordingly, they argue that their complaint in this cause of action
filed September 21, 2010 was within one year of that dismissal on March 16,
2010. See Cherry v. Williams, 36 S.W.3d 78, 85 (Tenn. Ct. App. 2000). See
also Nobes v. Earhart, 769 S.W.2d 868, 872-73 (Tenn. Ct. App. 1988).
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Indeed, the discovery rule applies to legal malpractice actions. John
Kohl & Co. v. Dearborn & Ewing, 977 S.W.2d 528, 532 (Tenn. 1998); and
Carvell v. Bottoms, 900 S.W.2d 23, 28-30 (Tenn. 1995).
In responding to this motion for summary judgment, Plaintiffs have
argued (1) that their August 19, 2009 letter to Defendant makes it clear that as
of that date, Defendant had represented to Plaintiffs that their case was okay,
that all she had to do was to submit new documents to the court, that they were
continuing to rely upon her to represent them and to accomplish the filing of
new documents, that Defendant was continuing to represent them, and that
they had no reason [to] know that anything was wrong with the handling of
their case; and (2) Plaintiffs argue that Defendant should not have continued
to represent them, and to represent to them that they could obtain relief from
the court, as early as August 7, 2007 given that the subdivision development
at issue in the original action was completed on August 17,1999, that the date
of last loss next preceding the filing of the complaint was August 7, 2003, and
that by August 7, 2007, the action was already barred by the statute of repose.
Plaintiffs further allege that they could not have known that their cause of
action began to accrue at the earlier date because their complaint was
dismissed for failure to complete discovery, rather than for failure to file
within the statute of repose. They allege, in the present action, that they
continue to rely upon Defendant’s alleged misrepresentations.
Defendant has responded, in her affidavit, that she filed the complaint
believing the alleged nuisance to be a temporary one that would not be barred
by the statute of repose.
The Court concludes that its decision in this matter does not turn upon
whether the underlying nuisance cause of action was possibly barred as early
as August 7, 2007. Regardless of what Plaintiffs understood, or did not
understand—and the Court has no doubt that likely they were not
knowledgeable of the applicable law, nevertheless it is clear from Plaintiffs’
letter to Defendant dated August 19, 2009 that, at least by that date, and
regardless of what they knew about the substance of nuisance law, they knew,
or in the exercise of reasonable diligence should have known, of Defendant’s
wrongful or negligent conduct, and that they had suffered injury as a result of
that conduct.
The August 19, 2009 letter makes it very clear that Plaintiffs understood
that Defendant had not properly represented them. The letter outlines
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Defendant’s alleged failure to respond to Plaintiffs, ignoring requests for
meetings, Plaintiffs being “more than patient with you concerning our case,”
the fact that their case had been “going nowhere” since the middle of 2007,
having no correspondence or communication with Defendant, missing a court
date and failing to tell Plaintiffs about that, and other similar matters. The
Court concludes that Plaintiffs had discovered, or by reasonable diligence
should have discovered, the fact that Defendant had engaged in negligent
conduct, that they had suffered injury as a result of that conduct, and that the
injury was caused by the negligent conduct certainly no later than August 19,
2009. Accordingly, the Court concludes that Plaintiffs had such knowledge,
or should have had such knowledge, more than one (1) year prior to the filing
of the present complaint on September 21, 2010, and that, therefore, this cause
of action is barred by the applicable one-year statute of limitations.
***
This is an unfortunate case, because the Court is persuaded that, in fact,
Defendant was negligent in representing Plaintiffs by allowing the original
complaint in the underlying case to be dismissed for failure to complete
discovery, and for waiting more than sixteen (16) months to file a new
complaint. Nevertheless, the Court must follow the law, and for the reasons
set forth herein, the Court concludes that Plaintiffs simply did not timely file
their legal malpractice action.
WHEREFORE, Plaintiffs’ complaint is dismissed, summary judgment
is granted to Defendant, and the costs are taxed to Plaintiffs.
Plaintiffs appeal the dismissal of their claim against Defendant to this Court.
Discussion
Although not stated exactly as such, Plaintiffs raise two issues on appeal: 1)
whether the Trial Court erred in granting summary judgment to Defendant on the basis that
Plaintiffs’ claim was barred by the statute of limitations; and, 2) whether the Trial Court
erred in granting summary judgment to Defendant on the basis that Defendant’s conduct was
not the proximate cause of any loss to Plaintiffs.1
1
Although Plaintiffs phrased their second issue in this manner, the Trial Court did not actually hold
that Defendant’s conduct was not the proximate cause of any loss to Plaintiffs. Instead, the Trial Court held
(continued...)
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Because this case was filed prior to July 1, 2011, we apply the standard of
review as set out by our Supreme Court as follows:
The scope of review of a grant of summary judgment is well
established. Because our inquiry involves a question of law, no presumption
of correctness attaches to the judgment, and our task is to review the record to
determine whether the requirements of Rule 56 of the Tennessee Rules of Civil
Procedure have been satisfied. Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.
1997); Cowden v. Sovran Bank/Cent. S., 816 S.W.2d 741, 744 (Tenn. 1991).
A summary judgment may be granted only when there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter
of law. Tenn. R. Civ. P. 56.04; Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn.
1993). The party seeking the summary judgment has the ultimate burden of
persuasion “that there are no disputed, material facts creating a genuine issue
for trial . . . and that he is entitled to judgment as a matter of law.” Id. at 215.
If that motion is properly supported, the burden to establish a genuine issue of
material fact shifts to the non-moving party. In order to shift the burden, the
movant must either affirmatively negate an essential element of the
nonmovant’s claim or demonstrate that the nonmoving party cannot establish
an essential element of his case. Id. at 215 n.5; Hannan v. Alltel Publ’g Co.,
270 S.W.3d 1, 8-9 (Tenn. 2008). “[C]onclusory assertion[s]” are not sufficient
to shift the burden to the non-moving party. Byrd, 847 S.W.2d at 215; see also
Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn. 1998). Our state does not
apply the federal standard for summary judgment. The standard established
in McCarley v. West Quality Food Service, 960 S.W.2d 585, 588 (Tenn. 1998),
sets out, in the words of one authority, “a reasonable, predictable summary
judgment jurisprudence for our state.” Judy M. Cornett, The Legacy of Byrd
v. Hall: Gossiping About Summary Judgment in Tennessee, 69 Tenn. L. Rev.
175, 220 (2001).
Courts must view the evidence and all reasonable inferences therefrom
in the light most favorable to the non-moving party. Robinson v. Omer, 952
S.W.2d 423, 426 (Tenn. 1997). A grant of summary judgment is appropriate
only when the facts and the reasonable inferences from those facts would
permit a reasonable person to reach only one conclusion. Staples v. CBL &
1
(...continued)
that Plaintiffs’ evidence was insufficient to establish that Defendant’s actions were the proximate cause of
any loss to Plaintiffs.
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Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000). In making that assessment, this
Court must discard all countervailing evidence. Byrd, 847 S.W.2d at 210-11.
Recently, this Court confirmed these principles in Hannan.
Giggers v. Memphis Housing Authority, 277 S.W.3d 359, 363-64 (Tenn. 2009).
We first consider whether the Trial Court erred in granting summary judgment
to Defendant on the basis that Plaintiffs’ claim was barred by the statute of limitations. As
this Court explained in Cherry v. Williams:
Defenses based on a statute of limitations are particularly amenable to
summary judgment motions. Most often the facts material to a statute of
limitations defense are not in dispute. When the facts and the inferences
reasonably drawn from the facts are not disputed, the courts themselves can
bring to bear the applicable legal principles to determine whether the moving
party is entitled to a judgment as a matter of law.
Cherry v. Williams, 36 S.W.3d 78, 83 (Tenn. Ct. App. 2000) (citations omitted).
Plaintiffs’ suit is one for legal malpractice. With regard to legal malpractice,
our Supreme Court has instructed:
The statute of limitations for legal malpractice is one year from the time
the cause of action accrues. Tenn. Code Ann. § 28-3-104(a)(2). 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).
In legal malpractice cases, the discovery rule is composed of two
distinct elements: (1) the plaintiff must suffer legally cognizable 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 diligence
should have known that this injury was caused by the defendant’s wrongful or
negligent conduct. Carvell v. Bottoms, 900 S.W.2d 23, 28-30 (Tenn. 1995).
An actual injury occurs when there is the loss of a legal right, remedy or
interest, or the imposition of a liability. See LaMure v. Peters, 122 N.M. 367,
924 P.2d 1379, 1382 (1996). An actual injury may also take the form of the
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plaintiff being 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. See State v. McClellan, 113 Tenn. 616, 85 S.W.
267, 270 (Tenn. 1905)(“[A negligent act] may not inflict any immediate wrong
on an individual, but . . . his right to a remedy . . . will [not] commence until
he has suffered some actual inconvenience. . . . [I]t may be stated as an
invariable rule that when the injury, however slight, is complete at the time of
the act, the statutory period then commences, but, when the act is not legally
injurious until certain consequences occur, the time commences to run from
the consequential damage. . . .”). However, the injury element is not met if it
is contingent upon a third party’s actions or amounts to a mere possibility. See
Caledonia Leasing v. Armstrong, Allen, 865 S.W.2d 10, 17 (Tenn. App. 1992).
The knowledge component of the discovery rule may be established by
evidence of actual or constructive knowledge of the injury. Carvell, 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 plaintiff is informed
by another attorney of the malpractice. Under the theory of constructive
knowledge, however, the statute may begin to run at an earlier date - whenever
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 defendant’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 legal standard. Shadrick, 963 S.W.2d at 733.
Rather, “the plaintiff 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 Roe v. Jefferson, 875 S.W.2d 653, 657 (Tenn. 1994)). “It is
knowledge of facts sufficient to put a plaintiff on notice that an injury has been
sustained which is crucial.” Stanbury, 953 S.W.2d at 678. A plaintiff may
not, of course, delay filing suit until all the injurious effects or consequences
of the alleged wrong are actually known to the plaintiff. Shadrick, 963 S.W.2d
at 733; Wyatt v. A-Best Company, 910 S.W.2d 851, 855 (Tenn. 1995).
Allowing suit to be filed once all the injurious effects and consequences are
known would defeat the rationale for the existence of statutes of limitations,
which is to avoid the uncertainties and burdens inherent in pursuing and
defending stale claims. Wyatt, 910 S.W.2d at 855.
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John Kohl & Co., P.C. v. Dearborn & Ewing, 977 S.W.2d 528, 532-33 (Tenn. 1998).
In their brief on appeal, Plaintiffs quote Cherry v. Williams wherein this Court
stated:
In litigation, the most easily identifiable time when rights, interests, and
liabilities become fixed is when a court enters judgment. A judgment, after all,
is “an adjudication of the rights of the parties in respect to the claim[s]
involved.” Ward v. Kenner, 37 S.W. 707, 709 (Tenn. Ch. App. 1896)
(defining judgment). Accordingly, most courts have made the entry of an
adverse judgment the starter pistol for the running of the statute of limitations
on litigation malpractice. See Laird v. Blacker, 2 Cal. 4th 606, 7 Cal. Rptr. 2d,
550, 828 P.2d 691, 696 (1992); Jason v. Brown, 637 So. 2d 749, 752 (La. Ct.
App. 1994); see also Tyler T. Ochoa & Andrew Wistrich, Limitation of Legal
Malpractice Actions: Defining Actual Injury and the Problem of Simultaneous
Litigation, 24 Sw. U. L. Rev. 1, 27-29 (1994). It is a court’s judgment that
decrees the loss of a right or remedy or imposes a legal liability. Thus, when
a judgment is entered, a “legally cognizable injury” occurs.
Cherry, 36 S.W.3d at 84-85.
Plaintiffs suffered an actual injury when Campbell I was dismissed for failure
to comply with a discovery order, as Plaintiffs then were forced to take further action which
otherwise would have been unnecessary, i.e., to pay fees in order to have their lawsuit re-
filed. Additionally, Plaintiffs suffered actual injury because they were taxed with costs both
in the order dismissing Campbell I and in the order denying the motion to set aside the
dismissal of Campbell I. Thus, Plaintiffs suffered an actual injury as a result of Defendant’s
wrongful or negligent conduct when Campbell I was dismissed.
Plaintiffs argue in their brief on appeal that “[o]rdinarily, the clock would begin
to run following [the dismissal of Campbell I], however, [Defendant] caused [Plaintiffs] to
continue to rely upon her to correct the dismissal as is evidenced by [Plaintiffs’] August 19,
2009 letter to [Defendant] . . . .” Plaintiffs argue that Defendant engaged in fraudulent
concealment by continuing to assure Plaintiffs that the “case was ok” and, therefore, the
statute of limitations did not begin to run until the dismissal of Campbell II. Plaintiffs are
mistaken.
As this Court explained in Cherry:
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A lawyer’s rosy characterization of an order adverse to the client does
not amount to fraudulent concealment of malpractice. See Riddle v. Driebe,
153 Ga. App. 276, 265 S.E.2d 92, 95 (1980). As long as the client is aware of
the fact that the court has ruled against his or her rights or interests, arguably
due to the lawyer’s mishandling of the case, then it matters not how counsel
may try to downplay or “spin” the bad result. At that point the client is aware
of the fact of injury. For statute of limitations purposes, that awareness is not
negated by the lawyer’s assurances that the court rendering the adverse order
got the law wrong. Nor does it matter that the lawyer states that he or she
believes that an appellate court will reverse the adverse order. As we have
previously said, “[W]e do not believe that reliance upon erroneous legal advice
can operate to toll the statute of limitations,” inasmuch as the discovery rule
relating to injury only applies to matters of fact unknown to a prospective
plaintiff, not to matters of law. Spar Gas, Inc. v. McCune, 908 S.W.2d 400,
404 (Tenn. Ct. App. 1995).
Cherry, 36 S.W.3d at 86.
The August 19, 2009 letter from Plaintiff Edwin Dennison to Defendant shows
that at least by that date Plaintiffs were aware of the adverse judgment entered against them
in Campbell I and also were aware that Defendant had failed to appear on their behalf at a
“court date.” Defendant’s rosy characterization of the situation when she downplayed the
severity of the dismissal of Campbell I and told Plaintiffs that the suit simply needed to be
re-filed is insufficient to amount to fraudulent concealment. Additionally, even if Defendant
engaged in fraudulent concealment with regard to her failure to make the court appearance
by not informing Plaintiffs of this failure, the August 19, 2009 letter shows that Plaintiffs
were on notice of Defendant’s failure to make the court appearance, at the latest, as of the
date of the letter.
In their brief on appeal Plaintiffs state: “The entirety of the [August 19, 2009]
letter shows that while [Plaintiffs] may have been aware that [Defendant] had failed at
performing her duties, it also demonstrates their reliance on her conduct in causing them to
continue to rely upon her throughout the re-filing of the Campbell II lawsuit.” This statement
acknowledges that Plaintiffs were aware of the alleged malpractice, but chose to continue to
rely upon Defendant. Plaintiffs’ reliance upon Defendant’s erroneous legal advice after the
dismissal of Campbell I is insufficient to toll the statute of limitations.
The August 19, 2009 letter shows that Plaintiffs knew or should have known
of Defendant’s wrongful or negligent conduct by the date of the letter, at the latest.
Plaintiffs, given the undisputed material facts, have not shown fraudulent concealment and,
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therefore, the statute of limitations began to run as of the date of the August 19, 2009 letter,
at the latest. As such, Plaintiffs’ suit filed September 21, 2010 was filed outside of the
statute of limitations.
Given the undisputed material facts, Defendant has shown that Plaintiffs
suffered an actual injury as a result of the alleged malpractice when Campbell I was
dismissed and that Plaintiffs knew or should have known by August 19, 2009 that the injury
was a result of Defendant’s wrongful or negligent conduct. Plaintiffs failed to show any
genuine disputed issue regarding their claim of fraudulent concealment of Defendant’s
alleged negligence. Given all this, Defendant was entitled to judgment as a matter of law.
Our disposition of Plaintiffs’ first issue renders moot the necessity of
considering Plaintiffs’ second issue. We affirm the Trial Court’s September 13, 2013
judgment dismissing Plaintiffs’ claim against Defendant.
Conclusion
The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
appellants, Edwin Dennison, Kaye Dennison, Joel Campbell, and Christine Campbell, and
their surety.
_________________________________
D. MICHAEL SWINEY, JUDGE
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