Reassurances that Lawyer Would Fix Mistake Do Not Toll Legal Malpractice Statute of Limitations in Tennessee
The statute of limitations for legal malpractice claims in Tennessee is one year from the date the action accrues. Tenn. Code Ann. § 28-3-104(a)(2). The “discovery rule” determines when the action accrues in most legal malpractice cases. Tennessee’s discovery rule says that a plaintiff’s time limit to file suit does not start to run until the plaintiff knows or in the exercise of reasonable diligence should know that he or she has an injury as a result of wrongful conduct by a defendant.
Recently, in Aleo v. Weyant, the Tennessee Court of Appeals examined a case involving a legal malpractice claim against a family law Attorney for failing to include a provision in a marital dissolution agreement and final decree of divorce specifying that the Wife would receive 50% of the Husband’s military pension and that she would be named as beneficiary of the pension. Attorney raised a statute of limitations defense and the trial court granted summary judgment.
The record showed that Wife went to a Staff Judge Advocate more than a year before she filed suit against Attorney and was advised by the Staff Judge Advocate that she would not get part of Husband’s pension benefits because the divorce decree was silent about that asset. Since the malpractice lawsuit was not filed within one year of Wife learning that she would not receive pension benefits, the Court of Appeals agreed with the Trial Court and upheld summary judgment.
Wife confronted Attorney after meeting with the Staff Judge Advocate and learning that she would not get the pension benefits and Attorney allegedly reassured her that he would fix the problem and make it right.
Wife attempted to argue that Attorney’s reassurances to her that he would fix things after she discovered the wrong concealed her loss. She argued that she didn’t actual discover her loss until June 2010 (less than a year before she filed suit) when she learned that the time to file a Rule 60 motion (for relief from judgments or orders) had expired. The Court of Appeals disagreed with Wife and found that a plaintiff cannot wait until she knows all of the consequences of the defendant’s wrongful conduct before bringing suit. The date a plaintiff knows there is an injury, the statute begins to run.
Wife also attempted to argue that Attorney should be equitably estopped from raising a statute of limitations defense because, she argued, Attorney misled her and prevented her from recognizing the injury by promising to fix it and make it right. The Court of Appeals explained that vague statements and ambiguous behavior will not carry the day on an equitable estoppel claim. Instead, to succeed on an equitable estoppel defense, the plaintiff must show that the defendant misled the plaintiff into failing to file suit by making specific promises and inducements that the defendant knew or should have known would cause the plaintiff to delay filing suit. The court found that Wife had not provided sufficient evidence to win on equitable estoppel.
The Court of Appeals also briefly addressed Wife’s claim for negligent infliction of emotional distress against Attorney. The court reminded us of the elements of NIED:
1. Defendant owned a duty of care to the plaintiff;
2. Defendant breached the duty;
3. Plaintiff suffered a loss;
5. Plaintiff suffered a serious emotional injury as a result.
Wife testified that she had not received any treatment from a psychologist or psychiatrist, nor was she taking an medications as a result of her alleged emotional injury. The trial court and Court of Appeals agreed that Wife had not presented sufficient evidence to sustain a claim for NIED. The court did not address the issue of whether a duty existed in the context of a lawyer / client relationship.
This result is consistent with the law of statute of limitations applied to other professionals in Tennessee.