Charles Dorse v. Martin Kriger ( 1998 )

IN THE COURT OF APPEALS OF TENNESSEE,
AT JACKSON
_________________________________________________________________
CHARLES E. DORSE II, ) Shelby County Chancery Court
) No. 109600-3
Plaintiff/Appellant )
) App. No. 02A01-9712-CH-00315
)
VS. ) HON. D. J. ALISSANDRATOS,
) CHANCELLOR
)
MARTIN R. KRIGER, ) AFFIRMED AND REMANDED
)
Defendant/Appellee. )
) OPINION FILED: FILED
Charles E. Dorse II, Pro Se
March 26, 1998
Martin R. Kriger, Memphis, Tennessee for Defendant/Appellee.
Cecil Crowson, Jr.
Appellate C ourt Clerk
______________________________________________________________________________
MEMORANDUM OPINION1
______________________________________________________________________________
Farmer, J.
Charles E. Dorse II appeals from the order of the trial court dismissing his complaint
for failure to file within the applicable statute of limitations. The complaint alleges that the plaintiff
is an inmate in custody of the Tennessee Department of Correction. The defendant, Martin Kriger,
is an attorney who was appointed to represent Plaintiff in a criminal action in Shelby County.
The complaint is styled State Tort Claim Complaint for a Violation of Civil Rights.
The gravamen of the complaint is that the defendant failed to notify the plaintiff that, after his
conviction, the plaintiff received an adverse decision in the Court of Criminal Appeals and that the
defendant failed to either file, or advise Plaintiff of his right to file, a timely application for
permission to appeal to the Tennessee Supreme Court pursuant to Rule 11 of the Tennessee Rules
of Appellate Procedure. This is a suit for legal malpractice.
1
Rule 10 (Court of Appeals). Memorandum Opinion. -- (b) The court, with
concurrence of all judges participating in the case, may affirm, reverse or modify the actions of
the trial court by memorandum opinion when a formal opinion would have no precedential value.
When a case is decided by memorandum opinion it shall be designated “MEMORANDUM
OPINION,” shall not be published, and shall not be cited or relied on for any reason in a
subsequent unrelated case.
According to the complaint, Plaintiff was notified by the clerk of the Court of
Criminal Appeals that that court had released its opinion on April 1, 1992 and that his attorney did
not file a Rule 11 application within thirty days 2 of that date.
Actions against attorneys for legal malpractice shall be commenced within one year
after the cause of action accrued. T.C.A. § 28-3-104. A suit may be brought more than one year
after the injury occurs, provided it is brought within one year after it is discovered or, in the exercise
of reasonable care and diligence, should have been discovered. Gosnell v. Ashland Chem., Inc., 674
S.W.2d 737 (Tenn. App. 1984). The plaintiff alleges in his complaint that he was advised by the
clerk of the Court of Criminal Appeals on June 23, 1993 that an adverse decision had been rendered
by that court on April 1, 1992 and that his attorney had failed to file a timely application for
permission to appeal with the Supreme Court. This complaint was filed June 6, 1997. Therefore,
we conclude that the trial court was correct in dismissing the complaint for failure to commence
within the applicable statute of limitations. The judgment of the trial court is affirmed and the costs
of this appeal are taxed to the appellant, Charles E. Dorse II for which execution may issue if
necessary.
____________________________________
FARMER, J.
______________________________
CRAWFORD, P.J., W.S. (Concurs)
______________________________
LILLARD, J. (Concurs)
2
The rule has been amended to extend the time for filing to within sixty days after the
entry of the judgment of the intermediate appellate court.