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Legal malpractice claim dismissed as untimely.

Where plaintiff filed a legal malpractice action in federal court within the one-year statute of limitations, but then waited more than one year after dismissal of that federal case to file this claim for legal malpractice, dismissal based on the statute of limitations was affirmed. In Tolson v. Herbison, No. M2020-01362-COA-R3-CV (Tenn. Ct. App. Aug. 12, 2021), plaintiff retained defendant to represent him in post-conviction matters related to plaintiff’s previous conviction for first-degree murder. The trial court denied post-conviction relief, which the Court of Appeals affirmed, and the Tennessee Supreme Court denied certiorari.

On May 23, 2013, plaintiff filed a complaint with the Tennessee Board of Professional Responsibility asserting that defendant failed to notify him of the denial of certiorari and failed to correspond with him, and that “as a result of [defendant’s] alleged errors, [plaintiff’s] writ of habeas corpus was denied as time-barred.” When plaintiff completed this complaint, he signed a disclaimer noting that legal malpractice claims are subject to a statute of limitations.

Plaintiff filed a legal malpractice claim in federal court on October 18, 2013, which the district court dismissed. The Sixth Circuit affirmed dismissal on October 6, 2016. Plaintiff then filed this case in Davidson County Circuit Court in July 2018, which the trial court dismissed as time-barred, and the Court of Appeals affirmed.

Legal malpractice claims are subject to a one-year statute of limitations pursuant to Tenn. Code Ann. § 28-3-104(c). The limitations period for a legal malpractice claim begins to run when two elements are met: “(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.” (internal citation omitted).

Here, plaintiff knew about his potential claim against defendant by May 23, 2013, which was the day he filed his Board of Professional Responsibility complaint, as that complaint was based on the same facts underlying the legal malpractice claim. Because the federal complaint was filed within one year from that date, the Court looked to Tenn. Code Ann. §28-1-115, which provides:

Notwithstanding any applicable statute of limitation to the contrary, any party filing an action in a federal court that is subsequently dismissed for lack of jurisdiction shall have one (1) year from the date of such dismissal to timely file such action in an appropriate state court.

Although the reason for and date of dismissal in the district court was not clear from the record, the Court looked to the Sixth Circuit’s decision affirming dismissal, which was issued on October 6, 2016. Because the state court case was filed on July 9, 2018, well beyond one-year from the Sixth Circuit’s affirmation of dismissal, the Court of Appeals affirmed the ruling that this case was time-barred.

While plaintiff argued that the five-year statute of repose for legal malpractice claims “operate[d] to save his lawsuit,” the Court rejected this argument, stating that “the statute of repose may extend the date for filing up to five years but only in cases where there has been fraudulent concealment of the attorney’s actions or omissions.” Here, fraudulent concealment was not an issue. Dismissal was accordingly affirmed.

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