Dent Road General Partnership v. Synovus Bank

11/26/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
September 11, 2018 Session
DENT ROAD GENERAL PARTNERSHIP ET AL. v. SYNOVUS BANK ET
AL.
Appeal from the Chancery Court for Shelby County
No. CH-12-1403 Jim Kyle, Chancellor
___________________________________
No. W2017-01550-COA-R3-CV
___________________________________
Appellants appeal the grant of summary judgment to defendants title company and legal
professionals on claims related to a real estate transaction that occurred in 2004. We
affirm the grant of summary judgment as to Appellants’ legal malpractice claim based
upon the expiration of the statute of limitations. Based upon agreement of the parties, we
also affirm the dismissal of Counts I through VII against the title company. The grant of
summary judgment in favor of the title company as to all remaining claims is vacated.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
in Part, Vacated in Part, and Remanded
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which THOMAS R.
FRIERSON, II, and BRANDON O. GIBSON, JJ., joined.
Randall N. Songstad, Cordova, Tennessee, for the appellants, Dent Road General
Partnership, and Tab Watters.
Mark J. Grai, Memphis, Tennessee, for the appellee, Chicago Title Insurance Company.
Richard Glassman and Jonathan Stokes, Memphis, Tennessee, for the appellees, Jason
Scott Wexler, and Hanover, Walsh, Jalenak & Blair, PLLC.
OPINION
Background
This case centers around a real estate transaction in Shelby County, Tennessee.
The property at issue consists of three tracts: the House Parcel, the Barn Parcel, and the
Access Tract (together, “the Dent Road property” or “the subject property”). The House
Parcel and the Barn Parcel were acquired by Defendant Trust One Bank (“Trust One”) by
virtue of a foreclosure. Trust One thereafter appointed Defendant Leonard C. Dunavant
as Substitute Trustee (“Substitute Trustee”) to conduct the foreclosure sale. On February
17, 2004, Trust One, Substitute Trustee, and the purported owner of the Access Tract,
Grace W. Swaney, entered into an “Escrow Agreement” whereby Trust One acquired the
rights to the Access Tract. This tract was necessary to maximize the value of the
foreclosed property as the House Parcel did not have access to a road. The purchase price
of $52,380.00 was placed in escrow, and Trust One received title to the Access Tract via
quitclaim deed from Ms. Swaney. The Escrow Agreement expressly stated that the
Access Tract was subject to pending lawsuits contesting Ms. Swaney’s ownership interest
in the Access Tract.
Plaintiffs/Appellants Joseph Higdon, Tab Watters, Robert L. Knight, and Michael
R. Mayer formed Dent Road General Partnership (“Dent Road” and collectively,
“Appellants”) for the purpose of acquiring the Dent Road Property. Appellants purchased
the subject property at a foreclosure sale on February 18, 2004. The contract specifically
stated that title was to be conveyed by warranty deed and gave Appellants a reasonable
amount of time to clear up any title defects. Dent Road retained Defendant/Appellee
Jason Wexler (“Attorney Wexler”) of Defendant/Appellee Hanover, Walsh, Jalenak &
Blair, PLLC (“Hanover Walsh,” and together with Attorney Wexler, “Appellees”) to
represent the Appellants in acquiring the subject property. Appellants and Appellees had
previously worked together in forming the partnership. Appellees engaged
Defendant/Appellee Chicago Title Insurance Company to provide title insurance for the
subject property. There is no dispute that Dent Road knew they were purchasing title
insurance at the time of the closing.
On March 23, 2004, Attorney Wexler emailed the substitute trustee concerning
some “issues [that had] arisen” with the closing. In particular the email noted that Ms.
Swaney and another purported owner, Randall P. Swaney, were “quitclaiming their
interests” in the Access Tract and that other minor title issues not at issue in this appeal
needed to be corrected. The email concludes that “[a]ssuming that we can get all of this
foregoing worked out in time,” the closing would take place as scheduled. It appears that
Mr. Watters was included in this email and that he forwarded the email to Mr. Mayer and
Mr. Knight. On March 28, 2004, Attorney Wexler emailed Mr. Watters to inform Dent
Road that there were “a series of minor errors” with regard to ensuring good title to the
subject property. Attorney Wexler asked if the partners wanted the “gory details” of the
issues; otherwise, Attorney Wexler stated that he would let Dent Road know “either (a)
when the title company has cleared us, or (b) when we hit a road block.” Attorney Wexler
and Mr. Watters undisputedly met on March 29, 2004, to go over the closing.
Appellants, by and through Mr. Watters, closed on the subject property on March 31,
2
2004. There is no dispute that at the closing Dent Road received a quitclaim deed
concerning the Access Tract rather than a warranty deed as specified in the contract.1
Despite the fact that only a quitclaim deed was conveyed concerning a portion of the
subject property, Dent Road paid the full sales price contemplated by the contract.
Appellants remained in possession of the subject property until 2011, when they
sought to sell the subject property. The Barn Parcel sold in March 2011 for $300,000.00,
with Dent Road retaining a small portion of the Barn Parcel for access purposes. Later in
2011, a prospective buyer approached Dent Road about purchasing the House Parcel, the
Access Tract, and the small remaining portion of the Barn Parcel. The buyer also wished
to purchase a small triangular tract from Ms. Swaney and Mr. Swaney. Dent Road was
willing to obtain this tract to consummate the purchase. Dent Road thereafter hired a title
company to perform a title search related to the triangular tract, which search revealed
title issues. On September 7, 2011, the title company informed Dent Road that these title
issues likely also affected the Access Tract. Specifically, the search revealed four pending
lawsuits seeking to set aside a fraudulent conveyance of the Access Tract by Ms. Swaney
and Mr. Swaney, several judgment liens, and liens lis pendens. When the Appellants
asked Chicago Title to reinsure the new purchaser, Chicago Title refused.2
On September 6, 2012, Appellants filed an action against Trust One, Substitute
Trustee, Attorney Wexler, Hanover Walsh, and Chicago Title, 3 seeking a declaratory
judgment, money damages, and rescission of the 2004 closing. Appellants alleged that,
among other things, Appellees failed to disclose title defects regarding the Dent Road
property and conspired to deliver Appellants inferior title to the subject property.
Additionally, Appellants alleged that Chicago Title failed to act in a diligent and
reasonable manner to correct the alleged title defects affecting the subject properties. An
amended complaint was filed on November 6, 2012.
Appellees moved for summary judgment for the first time on March 3, 2015,
arguing that Appellants’ claims were barred by the one-year legal malpractice statute of
limitations. In support, Appellees filed the affidavit of Attorney Wexler, who testified
that the title issues were disclosed to Mr. Watters prior to the closing. In addition, both
Attorney Wexler and his staff testified that all closing documents, including the Access
Tract quitclaim deed, were mailed to Dent Road. The defendant bank and Chicago Title
also filed motions for summary judgment. Appellants filed a response in opposition to
Appellees’ motion, supported by the affidavit of Mr. Watters, who testified that he was
unaware of the title issues prior to 2011. The trial court entered an order denying the
1
The other two tracts were conveyed by Substitute Trustee’s Deed.
2
It is undisputed that Chicago Title eventually resolved the title defects.
3
The record also reveals that other defendants were dismissed by consent order granting
summary judgment. The consent order is not included in the record but is referenced in a statement of
undisputed material facts.
3
motions on December 2, 2016, concluding that disputes of material fact made summary
judgment inappropriate.
The parties conducted additional discovery, including the deposition of Mr.
Watters. In his deposition, Mr. Watters denied that he ever personally received the
closing documents following the closing but (1) admitted that he could not definitively
state that the documents were not received by Dent Road; (2) indicated they he saw the
quitclaim deed so long as it was part and parcel of the closing documents; (3) stated that
he made no effort to investigate the closing documents after allegedly not receiving them;
and (4) could not recall the March 29, 2004 meeting with Attorney Wexler. Appellees
filed a renewed motion for summary judgment on May 9, 2017, again arguing that
Appellants’ injury arose at the time of closing, March 31, 2004, and that the Appellants’
claims were time-barred. After receiving supplemental briefing on the discovery rule,
discussed infra, the trial court entered an order granting the renewed motion for summary
judgment on July 7, 2017. Adopting the argument of Appellees, the trial court determined
the injury for purposes of the discovery rule occurred on the date of closing, March 31,
2004, and that Appellants were alerted to the injury when they received the quitclaim
deed at the closing. The trial court certified its judgment as final pursuant to Rule 54.02
of the Tennessee Rules of Civil Procedure. Appellants filed a timely notice of appeal
August 3, 2017.4
Issues Presented
Appellants raise three issues, which are taken from their appellate brief:
1. Whether the trial court erred by improperly applying the “discovery rule”
in a legal malpractice setting when it found the Appellant suffered an injury
at the real estate closing in 2004 instead of when Appellant was unable to
sell the real property in 2011.
2. Whether the trial court erred in applying the “knowledge” element of the
discovery rule when it found the Appellant should have known at closing
that it received real property with significant title defects.
4
Following the filing of the notice of appeal, the parties engaged in a dispute concerning the
record. Eventually, the trial court adopted Appellees’ designation of the record. Although Appellants
asked this Court to intervene, they failed to comply with our rules regarding motion practice and never
filed a fully compliant motion. As noted throughout this opinion, the record on appeal omits several
documents that would have been useful for a full adjudication of this appeal. Indeed, despite the fact that
this case involves the statute of limitations, making the date the initial complaint is filed highly relevant,
this initial complaint is not included on appeal. The parties do not dispute, however, that the complaint
was filed on September 6, 2011. While we often commend parties on their efforts to limit the record to
only relevant documents, the highly truncated record in this case creates difficulty in adjudicating this
appeal.
4
3. Whether the trial court erred in dismissing all of the Appellants’ claims
against Chicago Title based on the statute of limitations for legal
malpractice and when a motion as to all claims was not before the court.
Standard of Review
This case was decided on a motion for summary judgment. Summary judgment is
appropriate where: (1) there is no genuine issue with regard to the material facts relevant
to the claim or defense contained in the motion; and (2) the moving party is entitled to
judgment as a matter of law on the undisputed facts. Tenn. R. Civ. P. 56.04. “[W]hen the
moving party does not bear the burden of proof at trial, the moving party may satisfy its
burden of production either (1) by affirmatively negating an essential element of the
nonmoving party’s claim or (2) by demonstrating that the nonmoving party’s evidence at
the summary judgment stage is insufficient to establish the nonmoving party’s claim or
defense.” Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn.
2015).
On appeal, this Court reviews a trial court’s grant of summary judgment de
novo with no presumption of correctness. Rye, 477 S.W.3d at 250 (citing Bain v. Wells,
936 S.W.2d 618, 622 (Tenn. 1997)). In reviewing the trial court’s decision, we must view
all of the evidence in the light most favorable to the nonmoving party and resolve all
factual inferences in the nonmoving party’s favor. Luther v. Compton, 5 S.W.3d 635,
639 (Tenn. 1999); Muhlheim v. Knox Cty. Bd. of Educ., 2 S.W.3d 927, 929 (Tenn.
1999). If the undisputed facts support only one conclusion, then the court’s summary
judgment will be upheld because the moving party was entitled to judgment as a matter
of law. See White v. Lawrence, 975 S.W.2d 525, 529 (Tenn. 1998); McCall v. Wilder,
913 S.W.2d 150, 153 (Tenn. 1995). When a moving party has filed a properly supported
motion for summary judgment, the nonmoving party must respond by pointing to
evidence that shows summary judgment is inappropriate. Rye, 477 S.W.3d at 264–65.
Analysis
I.
We begin with the question of whether the trial court correctly granted summary
judgment to Appellees on all claims related to legal malpractice based on the expiration
of the statute of limitations. Pursuant to Tennessee Code Annotated section 28-3-
104(c)(1), claims of legal malpractice “shall be commenced within one (1) year after the
cause of action accrued.” In order to determine when the action accrues—that is, when
the statute of limitations begins to run—we apply the discovery rule. Story v. Bunstine,
538 S.W.3d 455, 463 (Tenn. 2017). As the Tennessee Supreme Court recently explained:
5
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.
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.
Story, 538 S.W.3d 463–64 (quoting John Kohl & Co. P.C. v. Dearborn & Ewing, 977
S.W.2d 528, 532 (Tenn. 1998) (internal citations and quotation marks omitted)). Thus,
the discovery rule in this situation requires both an actual injury and knowledge that the
injury was caused by the defendant for a cause of action to accrue for purposes of the
statute of limitations. Id. at 464 (citing Carvell v. Bottoms, 900 S.W.2d 23, 30 (Tenn.
1995)).
A.
Appellant argues that neither element is present in this case. As such, we begin
with the question of when Appellants suffered a legally cognizable injury. In order for a
cause of action to accrue and the statute of limitations to begin to run, the plaintiff must
suffer an actual injury, also known as a “legally cognizable injury.” Id. at 464. According
to our supreme court:
An actual injury occurs when there is the loss of a legal right, remedy or
interest, or the imposition of a liability. An actual injury may also take the
form of the 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. However, the injury element is
not met if it is contingent upon a third party’s actions or amounts to a mere
possibility.
Id. at 464 (quoting Kohl, 977 S.W.2d at 532). Thus, an alleged injury will not constitute
an actual injury where it is “speculative, uncertain, and contingent on a third party
attack.” Importantly, however, the Tennessee Supreme Court recently reaffirmed the
principle that the injury need not be irremediable. Id. at 465 (citing Carvell, 900 S.W.2d
at 30). As such, it is “not necessary for [the plaintiff] to have suffered all the injurious
effects or consequences of the alleged negligence in order for the statute to begin
running.” Cardiac Anesthesia Servs., PLLC v. Jones, 385 S.W.3d 530, 543 (Tenn. Ct.
App. 2012) (quoting Honeycutt v. Wilkes, McCullough & Wagner, No. W2007-00185-
COA-R3-CV, 2007 WL 2200285, at *7 (Tenn. Ct. App. Aug. 2, 2007)).
6
Here, the parties dispute when the injury occurred for purposes of the statute of
limitations. According to Appellees, the injury occurred at the time of the closing, when
Appellants received less than marketable title. According to Appellants, however, no
actual injury occurred until Appellants were unable to sell the subject property in 2011.
Each party cites considerable caselaw to support their respective positions.
Appellants first cite Tennessee WSMP, Inc. v. Capps, No. 03A01-9407-CV-
00241, 1995 WL 83579 (Tenn. Ct. App. Mar. 2, 1995), a case again involving a real
estate transaction. In Capps, the plaintiff retained the defendant attorney to provide a title
opinion as to property that the plaintiff intended to purchase. Id. at *1. In 1986, the
plaintiff purchased the property and title insurance upon the assurance that the title was
free and clear of all encumbrances. Alas, the property was encumbered by a deed of trust
and amendment. Around November 1990, the plaintiff attempted to sell the property; the
sale did not take place due to the undisclosed encumbrance. Id. at *1–*2. A suit between
the plaintiff property owner and the buyer terminated favorably to the buyer in May
1993. Id. at *2. A malpractice action was thereafter filed in December 1993. Id. The
plaintiff asserted that no actual injury occurred until the adverse decision in the court case
involving the buyer. The trial court disagreed and granted summary judgment. Id.
The Court of Appeals reversed. First, the court noted that the appropriate standard
for determining an injury is “the date on which the negligence became irremediable.” Id.
at *3 (Ameraccount Club, Inc. v. Hill, 617 S.W.2d 876, 879 (Tenn. 1981)). Under this
standard, the court concluded that the plaintiff’s injury did not become irremediable until
November 1990, when the plaintiff learned that there was a cloud on its title. Id. at *4. In
reaching this result, the court rejected the plaintiff’s contention that the injury did not
become irremediable until the termination of the buyer-seller court case in the buyer’s
favor, as well as plaintiff’s argument that in 1990, the plaintiff still hoped to salvage the
sale of the property. Id. Instead, the court concluded the date the cause of action accrued,
that is “injury to some extent was suffered and known[,]” the date that the plaintiff
learned of the cloud on its title—“a cloud that casts an ominous shadow over the
plaintiff’s plan to close the sale of the subject property[.]” Id. Because the legal
malpractice action was filed more than one year from this date, the court concluded that it
was barred by the applicable statute of limitations.
The next case cited by Appellants, Carvell v. Bottoms, is also a legal malpractice
case involving a real estate transaction. 900 S.W.2d at 24. In this case, however, the
Tennessee Supreme Court expressly rejected the irremediable standard applied in Capps.
In Carvell, the plaintiffs owned property that was subject to a gas pipeline easement. Id.
at 24–25. Following an agreement by a third party to purchase the property, the plaintiffs
retained an attorney to perform the title work and closing. Id. The attorney’s initial title
opinion noted the easement, but the warranty deed prepared by the attorney did not. Id.
The deed thereafter executed at the closing in December 1981 did not mention the
7
easement. The utility later moved the pipeline closer to the home, and the third party sued
the plaintiffs. Id. The plaintiffs hired independent counsel and judgment was eventually
entered against them for breach of warranty in January 1989. Id. After the judgment, the
plaintiffs asked their former attorney’s law firm to assume responsibility for the
judgment. The law firm refused, and the plaintiffs filed suit for legal malpractice in May
1990. Id.
The defendant law firm moved for summary judgment based upon the expiration
of the one-year statute of limitations. Id. The trial court granted the motion, but this Court
vacated the trial court’s judgment. Id. The Tennessee Supreme Court thereafter
reinstated the decision of the trial court that the statute of limitations had expired. Id. at
30. Specifically, the court concluded that the date the legal malpractice action accrued
was when they were sued for the wrongfully prepared deed, regardless of the fact that
multiple attorneys had advised plaintiffs that the suit for breach of warranty lacked merit.
In reaching this result, the court expressly rejected the notion that an injury does not
become legally cognizable until it is irremediable. Id. at 29–30 (“We can no longer even
approve of the usage of the adjective ‘irremediable’ in this context: this term, which was
first used in pure dicta by the Ameraccount court, has caused confusion from its
inception and serves no useful purpose.”).
In Wilson v. Pickets, 196 S.W.3d 138 (Tenn. Ct. App. 2005), the plaintiffs filed a
legal malpractice suit against their former attorney after it was discovered that the
attorney had allowed the plaintiffs to illegally subdivide their property. Id. at 140. The
plaintiffs alleged that the injury occurred and was discovered years later when a
subsequent owner of the property was denied building permits based upon the illegal
subdivision. Id. The trial court entered judgment in favor of the plaintiffs. Id. at 141.
On appeal, the attorney argued that the statute of limitations began to run on the
date that the subdivision occurred, as the plaintiffs should have known at that time the
applicable laws regarding subdivision. Id. at 143. The plaintiffs contended, however, that
they were not aware of a problem with the subdivision until notified by counsel following
the denial of the building permits. Id. The Court of Appeals ruled that the attorney’s
argument “goes to causation rather than discovery.” The Court stated, however, that the
plaintiffs “suffered no injury until April 14, 1998[,]” i.e., the date they were informed of
the illegality of the prior subdivision of the property. Id. The court went on to conclude,
however, that the plaintiffs were more than 50% at fault for the injury because one of the
plaintiffs was aware of the subdivision rules that rendered the subdivision of the property
illegal for building purposes. Id. at 144.
Finally, in Honeycutt v. Wilkes, McCullough & Wagner, No. W2007-00185-
COA-R3-CV, 2007 WL 2200285 (Tenn. Ct. App. Aug. 2, 2007) perm. app. denied
(Tenn. Dec. 26, 2007), the plaintiff sued her original divorce attorney following the
termination of her alimony payments due to cohabitation. Id. at *2. The plaintiff alleged
8
that her divorce attorney breached the standard of care in (1) advising the plaintiff that
Tennessee law required that in every agreed martial dissolution agreement, alimony must
be terminable upon cohabitation; (2) in informing her that she would not trigger the
cohabitation provision of the parties’ alimony award so long as she continued to own a
separate home, resulting in the termination of the alimony award; and (3) failing to be
diligent in the post-divorce proceeding seeking to terminate the alimony award. The
attorney argued, inter alia, that the claim was barred by the one-year statute of
limitations. Id. at *3. The trial court agreed and held that the statute of limitations began
to run when wife terminated her relationship with the divorce attorney. Id. This court
affirmed but chose a different date for the accrual of the plaintiff’s cause of action. Id. at
*6–*7. In particular, we held that the plaintiff’s injury occurred when she was forced to
defend against her former husband’s petition to terminate the alimony obligation. Id. at
*7.
Appellants contend that the above cases show that the injury at issue here did not
occur at the closing but in 2011, when Appellants were unable to sell the Dent Road
property and were required to expend resources and effort to correct the title deficiencies.
Appellees, of course, disagree, and argue that these cases are either distinguishable from
the present facts or support their argument. In addition, Appellees contend that the facts
of this case more closely align with the facts in Citicorp Mortg., Inc. v. Roberts, No.
02S019712CH00109, 1998 WL 690839 (Tenn. Oct. 5, 1998).5 In Citicorp, a property
owner sought the services of the plaintiff financial institution to refinance the debt on his
property. Id. at *1. The plaintiff hired the defendant attorney to handle the closing. At
that time, the property had three existing liens. Id. Plaintiff financial institution instructed
the attorney to obtain a release of one of the liens; the attorney did not obtain the release,
and when the closing occurred in January 1990, the lien remained on the property,
superior to the plaintiff’s lien. Id. The superior lien holder later foreclosed on the
property, to the plaintiff’s detriment. As such, the plaintiff filed a legal malpractice suit in
August 1992 against the defendant closing attorney, contending that the attorney
breached the standard of care when he failed to ensure that the lien was released. Id. The
trial court eventually granted summary judgment to the defendant attorney based upon
the expiration of the statute of limitations. Id.
The Court of Appeals reversed, holding that no actual injury occurred until the
foreclosure of the property, which “wip[ed] out” the plaintiff’s lien. Id. at *2 (quoting
Citicorp Mortg., Inc. v. Roberts, No. 02A01-9608-CH-00196, 1997 WL 275587, at *6
(Tenn. Ct. App. May 27, 1997)). In reaching this result, the Court of Appeals noted that
5
CitiCorp is an unpublished opinion from the Tennessee Supreme Court. Id. at *1 (“THIS
OPINION IS DESIGNATED AS NOT FOR PUBLICATION AND MAY NOT BE CITED EXCEPT AS
PROVIDED BY TENN. S.CT. RULE 4.”). Although it is citable, not having been designated “Not for
Citation[,]” it is only of persuasive value in this case. See generally Tenn. R. Sup. Ct. 4.
9
had the property owner paid the indebtedness on the superior lien, no injury would have
been sustained by the plaintiff financial institution. Id. Because the case was filed within
one year of the foreclosure, the court concluded that the action was not barred by the one-
year statute of limitations. Id.
The Tennessee Supreme Court reversed the decision of the Court of Appeals and
reinstated the decision of the trial court. Specifically, the court held that the plaintiff
financial institution suffered an actual injury at the time of the closing:
[W]e are persuaded that an actual injury was sustained by the plaintiff at the
time of the closing on January 10, 1990. It was on that date that the plaintiff
lost its legal position with regard to the security interest which was to be
used to secure the loan. In other words, the plaintiff’s lien was rendered
subordinate to [the superior lienholder’s] interest in the property as of the
date of closing. Also, the plaintiff’s loan was worth less as of the day of
closing due to its junior position. Accordingly, we find that the actual injury
occurred when [the superior lienholder’s] senior position was established at
the closing on January 10, 1990.
Id. at *4. The legal malpractice complaint, filed more than year following this date, was
therefore untimely. Id.
Considering all of the cases cited by the parties, we are likewise persuaded that the
injury in this case occurred at the closing on March 31, 2004. As previously discussed,
the Tennessee Supreme Court has recognized that an actual injury can occur when the
plaintiff is forced to take action or suffers an actual inconvenience or when the plaintiff
loses a legal right or interest. See Story, 538 S.W.3d 464 (quoting Kohl, 977 S.W.2d at
532). Appellant’s focus on the fact that they were not required to expend effort to correct
the deficiency in the title until 2011 is therefore not dispositive of the question of when a
legally cognizable injury occurred in this particular case. Thus, the decision in
Honeycutt is largely inapposite to the analysis in this case. See Honeycutt, 2007 WL
2200285, at *5–*7 (involving the question of when the plaintiff suffered some actual
inconvenience from the attorney’s alleged malpractice).
Appellants contend, however, that the facts in Wilson and Carvell are more
closely aligned with the situation presented in this case. See generally Wilson, 196
S.W.3d at 140. As an initial matter, the court in Wilson expended little effort discussing
the date of injury, framing the argument of the parties as one of causation rather than
accrual. Id. at 143 (“[Defendant’s] argument, as we perceive it, goes to causation rather
than discovery.”). Moreover, the situation in Wilson is not identical, as the buyer and
seller roles are reversed from this case. In Wilson, the plaintiff in the legal malpractice
suit was the seller of property who was later sued for transferring property with a cloud
on the title. The seller, no longer having any interest in the property, therefore suffers no
injury until forced to defend against a later action involving the cloud. Any alleged injury
10
that took place at the closing was therefore contingent on the actions of a third party. See
Story, 538 S.W.3d at 465 (holding that a legally cognizable injury does not occur if the
injury is speculative or contingent on the actions of a third party). The same situation was
present in Carvell, where again the plaintiff in the legal malpractice action was the seller
of the property in the underlying real estate transaction. See Carvell, 900 S.W.2d at 24–
25.
Here, Appellants were the purchasers, rather than the sellers of the subject
property, during the 2004 transaction. At this time, despite the express requirement that
the purchase of the Dent Road property be accomplished by warranty deed, Appellants
received only a quitclaim deed to the Access Tract, a necessary component of the Dent
Road property for use of the House Parcel. Moreover, there is no dispute in this case that
at the time of the closing, the quitclaim deed conveyed less than marketable title to
Appellants. See Black’s Law Dictionary 1623 (9th ed. 2009) (defining “unmarketable
title” as “[a] title that a reasonable buyer would refuse to accept because of possible
conflicting interests in or litigation over the property). Indeed, in their response to
Appellees’ statement of undisputed facts, Appellants admitted that “title was not
marketable on that day,” i.e., the date of the closing. The injury to them was not the
inconvenience of defending against a later suit by the buyer but in actually receiving
property via quitclaim deed with a cloud on its title, despite the expectation that the title
would be conveyed via warranty deed and be marketable. Indeed, the amended complaint
in this case bears out this interpretation. See Tenn. R. Civ. P. 56.04 (stating that summary
judgment shall be granted “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”) (emphasis added); see also Pankow v. Mitchell, 737 S.W.2d 293, 296
(Tenn. Ct. App. 1987) (“[F]actual statements contained in pleadings filed on behalf of a
party may be considered as admissions.”). For example, the amended complaint states
that “[a]t the time of the closing, the title being conveyed by the Substitute Trustee’s
Deed was not good and merchantable[.]” Appellants admit in the amended complaint that
such a situation created a concern that there was a cloud on the title of the subject
property.6 Moreover, the damages sought do not involve the expense required to defend
any particular action against a third party but to rescind the original real estate transaction
due to unmarketable title. The damage to Appellants therefore occurred at the closing,
rather than when the plaintiffs were unable to sell the Dent Road property due to the title
defect.
Thus, the situation in this case most closely aligns with the facts in CitiCorp. See
generally Citicorp, 1998 WL 690839, at *1–*4. There, like here, the plaintiff in the legal
6
Appellants contended that the sellers had superior title but admitted that such determination
would be required to be determined with a quiet title action.
11
malpractice action is the purchaser of the property. Likewise, in both cases, the plaintiff
purchased property with the expectation that the title would be marketable. At the
closing, however, both parties received encumbered property. As of the date of the
closing, the plaintiff’s interests in the properties were therefore impaired. See id. at *4
(holding that an actual injury occurred when the plaintiff’s interest in the property was
subordinated). This “loss of a legal right, remedy or interest” is sufficient to establish a
legally cognizable injury as of the date of the closing. Story, 538 S.W.3d 464 (quoting
Kohl, 977 S.W.2d at 532). Indeed, even though the Capps court utilized a now-defunct
standard, the court came to a similar conclusion regarding what constitutes a legally
cognizable injury. Capps, 1995 WL 83579, at *4. In particular, the court made clear that
the injury that occurred was the cloud on the purchaser’s title to the property, rather than
expense or effort associated with remedying the impairment. Id.7 Thus, the trial court did
not err in concluding that Appellants suffered an actual injury as of the closing date,
March 31, 2004.
B.
Appellants next contend that regardless of when the injury occurred, they did not
have actual or constructive notice of the injury until September 2011. Again, in order for
a cause of action to accrue and the statute of limitations to run, the plaintiff must have
both suffered an injury and had notice of the injury. Story, 538 S.W.3d at 464 (quoting
Kohl, 977 S.W.2d at 532). As explained by the Tennessee Supreme Court:
The knowledge component of the discovery rule may be established by
evidence of actual or constructive knowledge of the injury. 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. 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. 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
7
We concede that the Capps court did not hold that the injury occurred on the date of the closing.
This conclusion appears to result from two considerations: (1) the court appeared to analyze both the
injury and the knowledge of the injury simultaneously; and (2) the court applied the “irremediable injury”
standard that is no longer good law.
12
injury as a result of wrongful conduct. It is knowledge of facts sufficient to
put a plaintiff on notice that an injury has been sustained which is crucial.
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.
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.
Id. (quoting Kohl, 977 S.W.2d at 532–33 (citations omitted)).
Appellants contend that they only received knowledge of the title defects
regarding the subject property in September 2011 when they were informed by another
closing attorney that they could not sell their property. The trial court disagreed, ruling
that
In [his] deposition testimony, Mr. Watters stated that he couldn’t remember
receiving the closing documents after the closing, that even if he had
received such, he wouldn’t have read the documents, and, if he had read
such, he would have seen that it was a quitclaim deed instead of a warranty
deed, a fact not presented to him until several years later when he tried to
sell the property.
Thus, the knowledge prong of the discovery rule is satisfied as of the
date of closing on March 31, 2004.
According to Appellants, however, this ruling was properly decided only by a jury.
As an initial matter, Appellants appear to argue that Mr. Watters’s testimony that
he had no actual knowledge of the title defects is sufficient to prevent summary judgment
on this issue. According to Appellants, “[t]he fact that [Mr. Watters] has denied any
knowledge of the defect creates, in and of itself, a fact issue for a jury to determine.”
Appellants cite no law to support this assertion, which is unsurprising, as it is not an
accurate statement of Tennessee law. As previously discussed, the knowledge element of
the discovery rule is satisfied by evidence of either actual or constructive notice of the
injury. Id. (quoting Kohl, 977 S.W.2d at 532). Moreover, Tennessee courts have often
concluded that a plaintiff had constructive notice of an injury at the summary judgment
stage of litigation. See, e.g., Cardiac Anesthesia Servs., PLLC v. Jones, 385 S.W.3d 530,
546 (Tenn. Ct. App. 2012) (affirming summary judgment on the basis that that the client
had constructive notice of an injury); Lufkin v. Conner, 338 S.W.3d 499, 505 (Tenn. Ct.
App. 2010) (affirming summary judgment on the basis of constructive notice). Instead,
summary judgment may be granted in this situation “‘where the undisputed facts
demonstrate that no reasonable trier of fact could conclude that a plaintiff did not know,
or in the exercise of reasonable care and diligence should not have known, that he or she
13
was injured as a result of . . . [that] conduct.’” Smith v. Hauck, 469 S.W.3d 564, 572
(Tenn. Ct. App. 2015) (quoting Young ex rel. Young v. Kennedy, 429 S.W.3d 536, 557
(Tenn. Ct. App. 2013)). In the health care liability context, the Tennessee Supreme Court
has opined that “‘where the resolution of the issue depends upon the question of whether
due diligence was exercised under the circumstances, and where differing inferences
might reasonably be drawn from the uncontroverted facts, the issue is not appropriate for
summary judgment.’” Sherrill v. Souder, 325 S.W.3d 584, 597 (Tenn. 2010) (quoting
Hathaway v. Middle Tenn. Anesthesiology, P.C., 724 S.W.2d 355, 360 (Tenn. Ct. App.
1986)). Still, this rule does not mean “‘that summary judgment is never available when
the question of good faith or reasonableness is a determinative issue.’” Raleigh
Commons, Inc. v. SWH, LLC, No. W2011-01298-COA-R3-CV, 2013 WL 3329016, at
*15 (Tenn. Ct. App. June 28, 2013) (quoting Gulf Ins. Co. v. Construx, Inc., No.
M1999-02803-COA-R3-CV, 2001 WL 840240, at *19 (Tenn. Ct. App. July 26, 2001)).
In support of their argument, Appellants cite National Mortgage Co. v.
Washington, 744 S.W.2d 574 (Tenn. Ct. App. 1987), a legal malpractice action involving
a bankruptcy. In Washington, the plaintiff mortgage company held a deed of trust
securing a loan. Id. at 574. The deed of trust was guaranteed by the Veterans
Administration (“VA”) pursuant to its rules and regulations. Id. The debtor later filed a
petition for bankruptcy. The plaintiff hired the defendant attorney; in 1983, the attorney
entered into a consent order on plaintiff’s behalf in the bankruptcy proceeding. The
consent order allowed plaintiff to foreclose on the deed of trust, but had the effect of
waiving plaintiff’s ability to seek a deficiency and violated certain VA regulations.
According to the plaintiff, they only learned of the waiver of deficiency after they
attempted to seek payment of the deficiency years later. Id. at 576. In contrast, the
defendant attorney asserted that the plaintiff was on notice of the waiver at the time the
consent order was delivered to the plaintiff, as the consent order clearly stated that the
mortgage company “shall make no claim against the Debtors herein for any deficiency or
costs relating to the mortgage loan against said property.” Id. at 576. The trial court
granted summary judgment, ruling that the action was barred by the applicable statute of
limitations. Id. at 575.
The Court of Appeals reversed. Id. at 581. With regard to the knowledge element
of the discovery rule, the court held that the undisputed facts did not entitle the defendant
attorney to summary judgment because the inferences to be drawn from the facts were in
dispute, in particular whether notice of the agreed order alone was sufficient to put a
reasonable person on notice that the plaintiff would be unable to seek repayment from the
VA. Id. at 580. According to the court, “[w]hether the plaintiff’s employee should have
known the legal effect of the order calls for a determination of the reasonableness of the
employee’s conduct. Whether any kind of behavior conforms to a legal standard of
reasonable conduct is a mere fact question for the jury, and not a question of law.” Id. at
580. Applying this standard to the facts at issue, the court concluded that summary
judgment was not appropriate on the issue of the plaintiff’s reasonable belief,
14
summarizing that “[i]f the lawyer charged with the duty to protect plaintiff’s debt was
unaware of the ramifications of this order, is it reasonable to charge the layman relying
on the attorney with such knowledge? We think not.” Id. Importantly, in reaching this
result, the court noted that “[t]he record does not reflect that defendants at any time
conferred with plaintiff about the agreed order, and certainly they do not contend that
plaintiff consented to the action taken.” Id. at 579–80. Thus, we held that the grant of
summary judgment on the issue of the statute of limitations was inappropriate. Id. at 581.
Appellants assert that the facts in this case are highly analogous to the case-at-bar
and that summary judgment is likewise inappropriate. In particular, Appellants contend
that if the delivery of the consent order which expressly provided that the mortgage
company waived its right to seek a deficiency was not sufficient to put the plaintiff in
Washington on notice of its claim, the fact that Dent Road was delivered a copy of the
quitclaim deed in this case is likewise insufficient to show notice. 8 According to
Appellants, whether the quitclaim deed alerted them to the injury, i.e., the fact that their
title was unmarketable, as well as that this injury was “sustained as a result of the
defendant’s negligent or wrongful conduct,” is a proper question for the jury. Story, 538
S.W.3d 463–64 (quoting Kohl, 977 S.W.2d at 532).
Although Appellees do not specifically address Washington in their appellate
brief, Appellees do contend that Appellants here had the requisite knowledge to discern
the lack of marketability from the quitclaim deed, citing Mr. Watters’s deposition
testimony. In particular, Appellees note that when questioned as to whether a review of
the closing documents would have alerted Mr. Watters to “issues with the title,” Mr.
Watters replied that “At this point in my life, . . . yes. I understand that.” Respectfully, we
cannot conclude that this statement, made over a decade after the closing at issue,
sufficiently shows that Mr. Watters understood the implications of the documents at the
time of closing. Likewise, this statement does not support a conclusion that, as a matter of
law, a person exercising due diligence would have been alerted to the title deficiencies at
issue here solely based upon the quitclaim deed, particularly the outstanding lawsuits
affecting title to the Access Tract. See Sherrill, 325 S.W.3d at 597. Moreover, while the
quitclaim deed itself may have been sufficient to put Mr. Watters and therefore
Appellants on notice that they had received less than they bargained for, in other words,
that they received a quitclaim deed concerning the Access Tract while the purchase
contract required a warranty deed, the notice required is not simply of the injury, but that
the injury was caused by the defendant’s negligence. See Story, 538 S.W.3d at 464
8
Appellants do not agree that the quitclaim deed was ever delivered to Appellants. The trial court
ruled, however, that the undisputed facts, as supported by the evidence presented, established that the
documents were delivered to Dent Road. Moreover, the undisputed facts show that Mr. Watters was
presented with the quitclaim deed during the closing. Because of our resolution of this issue, any
purported dispute concerning the delivery of the documents is not material to the question of Appellants’
knowledge for purposes of this appeal.
15
(quoting Kohl, 977 S.W.2d at 532) (noting that the knowledge must be sufficient to put
the plaintiff on notice that he has “suffered an injury as a result of wrongful conduct” by
the defendant).
We note, however, that the facts in this case are distinguishable from that of
Washington on another basis. As previously discussed, in reaching the result in
Washington, this court specifically noted that the record contained no evidence of
discussions between the plaintiff and the defendant attorney concerning the agreed order.
See Washington, 744 S.W.2d at 579–80. The same is not true in this case. Here, Attorney
Wexler specifically testified in his affidavit to the following:
9. On March 29, 2004, I met with Tab Watters in person, and he and I
discussed the details of the transaction at issue in this case, including:
a. The title issues surrounding the Access Tract;
b. The pending lawsuits affecting title to the Access Tract;
c. The judgment liens and liens lis pendens;
d. The manner in which Chicago Title would issue title policies to
insure over such title defects;
e. All issues and details surrounding the Escrow Agreement and the
$52,380 held in escrow by Evans & Petree;
f. All issues and details surrounding the Quitclaim Deed;
g. All issues and details surrounding the Substitute Trustee’s Deed
and Deeds of Trust;
h. All issues and details surrounding the Dedication and Escrow
Agreement;
i. Any and all other details of the transaction relating to the House
Parcel, Barn Parcel, and Access Tract;
10. After the March 29, 2004 meeting, there is no doubt that Mr. Watters
understood all of the circumstances of the transaction at issue, and
understood the Access Tract was subject to title issues.
11. Having been fully apprised of these circumstances, Mr. Watters, on
behalf of Dent Road Partnership, still went through with closing on the
House Parcel, Barn Parcel, and Access Tract, to fully consummate the
transaction.
16
12. Not only do I still have personal memory of this meeting that occurred
on March 29, 2004, but the Invoice for Professional Services Rendered
confirms that this meeting did occur on March 29, 2004 and that Mr.
Watters and I discussed “escrow and title issues,” which are the subject
areas referenced above in numerical paragraph 9 . . . .[9]
Thus, Attorney Wexler’s affidavit establishes that Mr. Watters had knowledge of the title
defects and Attorney Wexler’s failure to correct them immediately prior to the closing of
the subject property. Even understanding the outstanding title issues, Mr. Watters chose
to complete the closing of the Dent Road property. There is no dispute in this case that
knowledge possessed by Mr. Watters is imputed to Dent Road and its other partners. See
Tenn. Code Ann. § 61-1-102 (“A partner’s knowledge, notice, or receipt of a notification
of a fact relating to the partnership is effective immediately as knowledge by, notice to,
or receipt of a notification by the partnership, but is not effective as such if the partner
committed or consented to a fraud on the partnership.”). 10 This evidence therefore
satisfies Appellees’ burden of production to show that the knowledge element of the
discovery rule was met, at the latest, on March 31, 2004, when Appellees closed on the
subject property despite purported knowledge that the title issues had not been resolved.
The burden of production therefore shifted to Appellants to present sufficient
evidence to create a genuine issue of material fact on this issue. Rye, 477 S.W.3d at 264–
65. As our supreme court has explained:
“[W]hen a motion for summary judgment is made [and] . . . supported as
provided in [Tennessee Rule 56],” to survive summary judgment, the
nonmoving party “may not rest upon the mere allegations or denials of [its]
pleading,” but must respond, and 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.” Tenn. R.
Civ. P. 56.06. The nonmoving party “must do more than simply show that
there is some metaphysical doubt as to the material facts.” Matsushita
Elec. Indus. Co. [Ltd. v. Zenith Redio Corp.], 475 U.S. [574,] 586, 106
S. Ct. 1348 [(1986)]. The nonmoving party must demonstrate the existence
of specific facts in the record which could lead a rational trier of fact to find
in favor of the nonmoving party. If a summary judgment motion is filed
before adequate time for discovery has been provided, the nonmoving party
may seek a continuance to engage in additional discovery as provided in
Tennessee Rule 56.07. However, after adequate time for discovery has been
9
A copy of the invoice was attached as an exhibit to the affidavit.
10
Dent Road’s partnership agreement specifically states that the partnership is formed under the
Tennessee Uniform Partnership Act, Tennessee Code Annotated section 61-1-101 et seq.
17
provided, summary judgment should be granted if the nonmoving party’s
evidence at the summary judgment stage is insufficient to establish the
existence of a genuine issue of material fact for trial. Tenn. R. Civ. P.
56.04, 56.06. The focus is on the evidence the nonmoving party comes
forward with at the summary judgment stage, not on hypothetical evidence
that theoretically could be adduced, despite the passage of discovery
deadlines, at a future trial.
Id. at 465.
Here, in responding to the portion of Appellees’ statement of undisputed material
facts that concerns the March 29, 2004 meeting, Appellants cited portions of Mr.
Watters’s second affidavit.11 In relevant part, the affidavit states:
14. Based on the counsel from Jason Wexler that the issue[s] were minor in
nature, I had no reason to believe there was any material issue with title or
the closing proceeding as planned.
15. The issues disclosed in the March 23 and March 28, 2004 emails are not
the title defects which form the basis of this litigation and render title
unmerchantable at the time of closing.
16. At the time of purchase, I believed Dent Road GP was receiving good
and merchantable title pursuant to the terms of our purchase contract.
17. I signed the closing documents on behalf of Dent Road GP and a
personal guarantee to the lender financing the transaction under the belief
that title was good and when the time came, Dent Road GP could sell the
property.
18. I trusted Jason Wexler and his firm to conduct the closing transaction
according to the terms of our purchase contract.
19. I trusted that if title was not good and merchantable so as to endanger
our ability to sell the property when the time came, Jason Wexler and his
firm would alert us as such. I was not alerted.
* * *
11
Mr. Watters filed two affidavits in this case, one affidavit in response to the initial motion for
summary judgment and a second affidavit following the Mr. Watters’s deposition and the renewed motion
for summary judgment. Although only the second affidavit is specifically cited in response to Appellees’
renewed motion for summary judgment, we consider both affidavits for purposes of this appeal.
18
21. Jason Wexler did not spend a significant amount of time explaining the
closing documents nor did he explain the nature and scope of the title
defects in sufficient detail as to alert me that title to the property was not
marketable.
22. Jason Wexler did not advise me not to purchase this property.
23. Jason Wexler did not state that the possibility would arise that I could
not sell this property in the future until the title defects were resolved.
Mr. Watters’s first affidavit generally tracked the second affidavit’s assertion that Mr.
Watters was not provided notice of the title defects.
Appellees dispute these affidavits and contend that they do not create a genuine
dispute of material fact because they do not specifically address the March 29, 2004
meeting. Indeed, although the meeting is not discussed in Mr. Watters’s affidavits,
Appellants do not dispute that this meeting took place. As such, Appellees contend that
this court should look to Mr. Watters’s deposition testimony to determine whether a
dispute of material fact exists as to what was discussed during the meeting.
In particular, Appellees point to the following portion of the deposition:
Q. . . . What conversations did you have with Jason Wexler about this
closing in 2004 at any time?
A. The only conversation I remember having with Jason was he called and
said there were . . . minor issues with stuff that he was, you know, working
on.
Q. That was before the closing, right?
A. Yes.
Q. Now, he didn’t explain the minor issues to you?
A. . . . I don’t . . . recall.
Q. So you’re not saying he didn’t; you’re just saying you don’t remember
what he did or he didn’t do?
A. That’s . . . I don’t recall. I don’t know.
According to Appellees, this testimony shows that Mr. Watters does not deny that the
March 29, 2004 meeting took place as described by Attorney Wexler but only that he
cannot recall the meeting.
19
We agree that Mr. Watters’s deposition testimony is insufficient to create a
genuine dispute regarding Attorney’s Wexler’s unequivocal affidavit testimony that the
unresolved title issues were made known to Mr. Watters prior to the closing. A genuine
issue of material fact is generally defined as “‘a triable . . . or real question of fact
supported by . . . evidence.’” Aurora Loan Servs., LLC v. Woody, No. W2014-00761-
COA-R3-CV, 2014 WL 7463032, at *9 (Tenn. Ct. App. Dec. 30, 2014), perm. app.
denied (Tenn. June 16, 2015) (quoting Black’s Law Dictionary 756 (9th ed. 2009)).
Rather, Mr. Watters’s statement that he cannot recall the March 29, 2004 meeting or its
contents, particularly where this meeting is undisputed, is insufficient to meet Appellants’
burden to create a triable issue regarding the existence of this meeting or what was
discussed therein.
Although Mr. Watters’s deposition testimony is insufficient to create a material
fact on the issue of the March 29, 2004 meeting, we must also consider the effect, if any,
of Mr. Watters’s affidavits on this question. This court has previously addressed the
situation wherein a later-filed affidavit appears to conflict with deposition testimony:
The authors of Federal Practice and Procedure have addressed conflicts
between deposition testimony and a later-filed affidavit:
Although some courts have ruled that conflicts
between depositions and later-filed affidavits present
questions of credibility, precluding summary judgment,
several courts have suggested that summary judgment may be
granted under those circumstances, or that the affidavit may
be disregarded or stricken as sham.
10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice and Procedure § 2726, at 448–50 (3d ed. 1998) (footnotes
omitted). However, the authors go on to state that
[i]t seems quite clearly correct to conclude that an
interested witness who has given clear answers to
unambiguous questions cannot create a conflict and resist
summary judgment with an affidavit that is clearly
contradictory, without providing a satisfactory explanation of
why the testimony is changed. If such an explanation is
proffered, a credibility question is presented; without it, there
are no facts suggesting why a credibility question exists and
the nonmoving party should not be allowed to manufacture a
question of fact to delay resolution of the suit.
Id.[] at 452 (footnotes omitted).
20
Sampson v. Wellmont Health Sys., 228 S.W.3d 124, 135 (Tenn. Ct. App. 2007).
Consequently, this situation involves two questions: (1) whether affidavits and deposition
testimony actually conflict; and (2) whether the inconsistency is satisfactorily explained.
Id.
We conclude that Mr. Watters’s affidavits do not create a material issue of fact on
this issue. First, as discussed above, neither of Mr. Watters’s affidavits specifically
address the March 29, 2004 meeting. As such, the affidavits do not conflict with Mr.
Watters’s testimony that he simply cannot recall, and therefore cannot dispute, what was
discussed at the March 29, 2004 meeting as testified to by Attorney Wexler. Without
specifically noting the date of the contact, the second affidavit does state, however, that
Attorney “Wexler did not spend a significant amount of time explaining the closing
documents nor did he explain the nature and scope of the title defects in sufficient detail
as to alert me that title to the property was not marketable.” Likewise, both affidavits
generally indicate that Mr. Watters was provided no notice of the title defects prior to the
closing.
These statements, however, do little to undermine Attorney Wexler’s affidavit
testimony concerning the March 29, 2004 meeting. Appellants do not dispute that the
March 29, 2004 meeting between Mr. Watters and Attorney Wexler took place, despite
the fact that Mr. Watters testified that his only contact with Attorney Wexler prior to the
closing was by phone. Although Mr. Watters’s affidavits indicate that the title defects
were not properly communicated to Mr. Watters, Mr. Watters was unable to recall, and
therefore unable to deny, that the March 29, 2004 meeting took place as described by
Attorney Wexler. Thus, Mr. Watters’s affidavit testimony that the title defects were never
communicated to him must be considered in conjunction with his unfortunate inability to
remember the March 29, 2004 meeting, which Appellants admit took place. Attorney
Wexler’s testimony that the title defects were sufficiently communicated to Mr. Watters
on March 29, 2004 therefore must be considered undisputed for purposes of Appellees’
motion for summary judgment.12
In sum, Appellees met their burden of production to show that the outstanding title
defects were communicated to Mr. Watters on March 29, 2004 and that Mr. Watters,
knowing of the defects, went ahead with the closing. Appellants failed to meet their
burden of production to “demonstrate the existence of specific facts in the record which
could lead a rational trier of fact to find” that the meeting did not take place as described
by Attorney Wexler. Rye, 477 S.W.3d at 265. The undisputed facts therefore establish
that Mr. Watters knew or should have known that the title defects had not been corrected
12
In any event, even were we to conclude that the deposition and affidavits conflict, Mr. Watters
provided no explanation for the inconsistency. As such, the conflicting affidavits would be insufficient to
create a genuine dispute of material fact.
21
by Attorney Wexler, at the latest, on March 31, 2004, at the closing of the Dent Road
property. These facts were “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.” Story,
538 S.W.3d 464 (quoting Kohl, 977 S.W.2d at 533). Appellant’s cause of action therefore
accrued on March 31, 2004. Given that Appellant’s initial complaint was filed more than
one year following the accrual of the cause of action, the trial court did not err in granting
summary judgment as to all claims predicated on legal malpractice.13
II.
Appellants next argue that notwithstanding the expiration of the legal malpractice
statute of limitations, the trial court erred in “inexplicably” granting summary judgment
as to all claims against Chicago Title. We agree.
Here, Appellants filed a twenty-count amended complaint. Each defendant
thereafter filed a motion for summary judgment;14 the trial court eventually denied the
motions in a single order, ruling that disputes of material fact remained. Attorney Wexler
and Hanover Walsh thereafter filed a renewed motion for summary judgment, arguing
that any legal malpractice claim was barred by the statute of limitations. Chicago Title
filed a joinder of that motion but did not file a separate motion or in any way renew their
earlier motion.15 According to the parties, the joinder specifically asked that only some of
the counts alleged in the amended complaint be dismissed. In its later order granting
summary judgment, the trial court ruled only that the one-year statute of limitations
applicable to claims of legal malpractice had expired prior to the initiation of the suit.
Despite this fact, the trial court specifically stated that the grant of summary judgment
constituted “a final adjudication on the merits as to the Defendants . . . Chicago Title
Insurance Company.”
On appeal, Appellants assert that this was error, as only the issue of the legal
malpractice statute of limitations was before the trial court when it granted summary
judgment. Chicago Title concedes that the trial court’s order makes no specific findings
as to any claims other than for legal malpractice. Instead of conceding error, Chicago
Title asks this Court to perform a series of legal gymnastics to parse Appellant’s amended
13
In their brief, Appellants state that “[t]o the extent that Chicago Title argues that it should not
be held liable for attorney negligence of Appellees Wexler and Hanover [Walsh], Appellants agree and do
not make such an assertion in the Amended Complaint or here on appeal.” As such, it appears that
Appellants do not take issue with the trial court’s decision to grant summary judgment to Chicago Title as
to any and all legal malpractice claims.
14
Only the motion filed by Attorney Wexler and Hanover Walsh is included in the record on
appeal. The parties do not dispute this procedure.
15
The joinder does not appear in the record; again, the parties do no dispute the procedure that
occurred in the trial court.
22
complaint to determine whether summary judgment was nevertheless appropriate. For
example, with regard to one claim, Chicago Title argues the following,
Although it is not stated in the [order], the logical reason why the trial court
could have dismissed all claims against Chicago Title is because the trial
court . . . could well have concluded that no issues remained unsettled that
prevent Chicago Title to be dismissed with respect to all claims for relief
against it.
Respectfully, we decline Chicago Title’s invitation to engage in speculation concerning
the trial court’s undisclosed motives for the grant of summary judgment.
The Rules of Civil Procedure expressly require that the trial court state the
grounds for any grant or denial of summary judgment. Tenn. R. Civ. P. 56.04 (“The trial
court shall state the legal grounds upon which the court denies or grants the motion,
which shall be included in the order reflecting the court’s ruling.”). While this Court may
sometimes affirm the trial court’s grant of summary judgment on different grounds than
those stated, see City of Brentwood v. Metro. Bd. of Zoning Appeals, 149 S.W.3d 49, 60
n.18 (Tenn. Ct. App. 2004), we have been directed by our supreme court that an
archeological dig of the record to support a trial court’s action is not required. See
generally Smith v. UHS of Lakeside, Inc., 439 S.W.3d 303, 314 (Tenn. 2014). Rather,
the Tennessee Supreme Court has stated that a trial court’s order granting or denying
summary judgment must be the product of the trial court’s independent judgment. Id. As
such, we have more recently declined to rule on issues that were not expressly addressed
by the trial court. See Mid-S. Maint. Inc. v. Paychex Inc., No. W2014-02329-COA-R3-
CV, 2015 WL 4880855, at *14 (Tenn. Ct. App. Aug. 14, 2015) (“Generally, when the
trial court fails to address an issue in the first instance, this Court will not consider the
issue, but will instead remand for the trial court to make a determination in the first
instance.”).
Here, the trial court’s written order contains legal reasoning only surrounding the
legal malpractice statute of limitations. Following our review, we have affirmed the
dismissal of all claims predicated on legal malpractice. Although Chicago Title urges this
Court to affirm the dismissal of all other claims against Chicago Title, the trial court’s
ruling is silent as to these claims; further, Chicago Title’s initial motion for summary
judgment in which it raised arguments concerning the claims against it is not included in
the appellate record.16 As such, we are unable to determine what issues were properly
raised in the trial court, and we decline to review these issues. Cf., Simpson v. Frontier
Cmty. Credit Union, 810 S.W.2d 147, 153 (Tenn. 1991) (holding that issues must be
16
Appellants, Attorney Wexler, and Hanover Walsh engaged in a dispute over the record, with
the trial court eventually accepting Attorney Wexler and Hanover Walsh’s designation of the record.
Nothing in this record suggests that Chicago Title objected to the record as designated.
23
properly raised in the trial court to be considered on appeal). The parties agree on appeal,
however, that Counts I through VII were properly dismissed as to Chicago Title. To the
extent that any additional counts were dismissed against Chicago Title by the trial court’s
grant of summary judgment, the trial court’s ruling is vacated. The parties are free to
renew their arguments concerning the propriety of these claims upon remand.
III.
The judgment of the Chancery Court of Shelby County is affirmed in part, vacated
in part, and remanded for further proceedings. Costs of this appeal are taxed one-half to
Appellants Joseph Higdon, Tab Watters, Robert L. Knight, Michael R. Mayer, and Dent
Road General Partnership, and one half to Appellee Chicago Title Insurance Company,
for all of which execution may issue if necessary.
_________________________________
J. STEVEN STAFFORD, JUDGE
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