Banton v. Marks, 80-341-II

Decision Date13 August 1981
Docket NumberNo. 80-341-II,80-341-II
PartiesMabel W. BANTON, Individually and as Administratrix of the Estate of Pete A. Banton, Deceased, Plaintiff-Appellant, v. Dempsey H. MARKS and Albert P. Marks, Individually and d/b/a Marks, Fleming andMarks, Attorneys at Law, Defendants-Appellees. 623 S.W.2d 113
CourtTennessee Court of Appeals

William H. Poland, Poland & Poland, Clarksville, Chambers, Johnson, Brooks & Beckner, Nashville, for plaintiff-appellant.

William C. Moody, W. Warner McNeilly, Jr., Nashville, for defendants-appellees.


CONNER, Judge.

This appeal tests the applicability of the one year statute of limitations in a legal malpractice case.

The facts are undisputed for purposes of this appeal since the case was dismissed on defendants' motion for summary judgment.

Plaintiff-appellant's decedent, 1 Pete A. Banton, a Tennessee resident, was injured in a two vehicle collision on July 9, 1976, in Todd County, Kentucky. Due to the graveness of his injuries, including a broken back and a severed spinal cord, Mr. Banton was transported to Baptist Hospital in Nashville, Tennessee, where he was placed in the care of Dr. C. David Schiebert.

Plaintiff, the wife of Mr. Banton, who was then totally disabled, retained defendants on or about July 15, 1976, to represent their interests in the matter.

Mr. Banton remained at Baptist Hospital in the care of Dr. Schiebert until October 1, 1976. He was then released from his care and transported to Memorial Hospital in Clarksville to be close to his family until hopefully well enough to go home.

However, on October 3, 1976, plaintiff learned that her husband had developed several life threatening bed sores. This information was communicated to the defendant attorneys that same day. Plaintiff's husband died October 19, 1976, while still a patient of Memorial Hospital. His immediate cause of death was listed as septicemia.

On June 23, 1977, Mrs. Banton filed a diversity of citizenship action in Federal District Court in Bowling Green, Kentucky, against the driver of the other vehicle, a Kentucky resident, seeking $357,000.00 in damages for the wrongful death of decedent. Neither Baptist Hospital nor Dr. Schiebert were named as defendants in that action.

On numerous occasions plaintiff requested that a lawsuit be brought against Baptist Hospital and Dr. Schiebert for malpractice. The defendant attorneys continually assured plaintiff that they would take care of everything, or suggested to Mrs. Banton that it was best to do "one thing at a time." Plaintiff's son and granddaughter received the same type of assurance from defendants as late as August of 1977. The statute of limitations, § 29-26-116 (formerly T.C.A. § 23-3415), ran as to Baptist Hospital and Dr. Schiebert on October 1, 1977, without any action having been brought against the hospital or the doctor.

Three months later, in January of 1978, plaintiff contacted her present attorneys, inquiring as to the possibility of filing a lawsuit against Baptist Hospital and Dr. Schiebert. She was then told by them that the time had indeed expired for bringing suit against Baptist Hospital and/or Dr. Schiebert. Plaintiff then confronted defendant Albert Marks with this fact, and he said nothing. The wrongful death suit in federal court in Kentucky was settled on September 19, 1978, for the nominal amount of $2,000.00. Plaintiff filed the instant suit against Marks and his partners for legal malpractice on October 16, 1978, alleging a failure to bring a medical malpractice suit.

Defendants filed a motion for summary judgment on the basis that the action became time barred by T.C.A. § 28-3-104 (formerly T.C.A. § 28-304) on October 1, 1978, one year after the date when the statute of limitations ran as to any cause of action which plaintiff might have had against Dr. Schiebert or Baptist Hospital for medical malpractice. The trial court sustained the motion and dismissed plaintiff's suit. Plaintiff appealed contending that the statute should run from January of 1978 when plaintiff discovered from her present counsel that the statute of limitations in malpractice cases was one year. In the alternative plaintiff contends that the statute should extend one year from September 19, 1978, the date the Kentucky litigation was terminated.

Plaintiff relies upon Teeters v. Currey, 518 S.W.2d 512 (Tenn.1974) and Ameraccount Club, Inc. v. Robert Hill, et al., 617 S.W.2d 876 (Tenn., 1981). Clearly Teeters and Ameraccount do stand for the proposition that the statute does not begin to run until a purported victim of medical or legal malpractice discovers or reasonably should discover "the fact" that the malpractice had occurred, resulting in harm to him or her. However, we do not believe those cases stand for the proposition that the statute does not begin to run until the victim discovers the length of the statute of limitations.

One reason for this is the presumption that everyone is deemed to know the law, Hill v. Maloney, 21 Tenn.App. 216, 108 S.W.2d 791 (1937), absurd as it might be in certain circumstances. However, this is not a "weighty" presumption. Ibid.

A far better reason is that unless we so hold, the clear legislative intent to strictly limit to one year the time in which such actions may be filed would easily be circumvented. Any plaintiff who had not filed suit for malpractice within one year could avoid the prohibition of the statute simply by saying that he or she was unaware of its existence. This claim could be made one year and one day after the alleged occurrence or eleven years later, even though witnesses might be dead or unavailable and memories dim or non-existent. The test would become subjective, rather than objective.

Had the legislature intended such a result we believe it would have so stated, which it did not. To the contrary, the statute is very clear that the action must be commenced within one year of the accrual of the cause of action for malpractice. By judicial construction, and in the case of...

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    • North Carolina Court of Appeals
    • 1 August 1995
    ...Several jurisdictions have adopted the "damage" rule of accrual within the context of malpractice litigation. See, e.g., Banton v. Marks, 623 S.W.2d 113 (Tenn.App.1981); Haghayegh v. Clark, 520 So.2d 58 (Fla.App.1988); Cofield v. Smith, 495 So.2d 61 (Ala.1986); Zidell v. Bird, 692 S.W.2d 55......
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    • United States
    • U.S. District Court — Eastern District of Tennessee
    • 16 December 1996
    ...Beaman v. Schwartz, 738 S.W.2d 632, 634 (Tenn.Ct.App.1986). The discovery rule applies only to matters of fact. Banton v. Marks, 623 S.W.2d 113, 116 (Tenn.Ct.App.1981). It tolls the running of the statute of limitations only during the period when the plaintiff has no knowledge at all that ......
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    • United States
    • Tennessee Court of Appeals
    • 4 December 1992
    ...Beaman v. Scwartz, 738 S.W.2d 632, 634 (Tenn.Ct.App.1986). The discovery rule applies only to matters of fact. Banton v. Marks, 623 S.W.2d 113, 116 (Tenn.Ct.App.1981). It tolls the running of the statute of limitations only during the period when the plaintiff has no knowledge at all that a......
  • Knight v. Myers, 60257
    • United States
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    • 7 January 1988
    ...62, 736 P.2d 78 (1987); Supreme Court Rule 141(b). See K.S.A. 1987 Supp. 60-256(e). 29, 1985, is time-barred. See Banton v. Marks, 623 S.W.2d 113, 115 (Tenn.App.1981). SUBSEQUENT Defendant Myers terminated his employment with plaintiffs on December 1, 1981. On December 14, 1981, he formally......
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