Chambers v. Dillow
| Decision Date | 21 July 1986 |
| Citation | 713 S.W.2d 896 |
| Parties | Gregory CHAMBERS, Appellee, v. Larry R. DILLOW, et al., Appellants. NO. 148 713 S.W.2d 896 |
| Court | Tennessee Supreme Court |
Thomas C. McKee, H. Wayne Graves, Johnson City, John S. McLellan, Kingsport, for appellants.
Judith Fain, Erwin, for appellee.
This is an action against a lawyer and his law firm for malpractice.
Defendant was employed to sue Washington County for damages to plaintiff's realty inflicted in the course of paving and repairing an adjacent roadway. The acts of malpractice alleged were (1) failure to include in the suit filed 28 March 1980 a cause of action for inverse condemnation; (2) allowing that suit to be dismissed on 18 March 1981 for failure to prosecute; and (3) intentionally concealing the dismissal of the suit against Washington County for approximately one year.
The trial judge held that the Washington County case was irremediable more than one year before this suit was filed. The Court of Appeals reversed, holding that although the suit was brought more than one year 1 after plaintiff learned that he had a cause of action, the running of the statute was tolled by plaintiff's efforts to revive the suit against Washington County, pursued by other counsel after asserting plaintiff's malpractice claim against defendants. We disagree, reverse and dismiss.
In March 1980 plaintiff employed defendant law firm to pursue his claim against Washington County and was referred to Thomas Frost. Suit was promptly filed asserting negligence of the county under the Tennessee Governmental Tort Liability Act as the sole cause of action. According to the complaint in this suit, which must be taken as true, the trial judge entered an Order To Prosecute, sua sponte on 17 November 1980, a copy of which was mailed to Frost. On 11 December 1980, the trial judge dismissed the case by docket entry, but an Order of Dismissal was not entered until 18 March 1981. A copy of that order was sent to Frost.
According to plaintiff's affidavit, he had sought to employ Larry Dillow and was assured that he would participate in the trial; he called many times to inquire about the progress of his suit, but Frost was never in and he would talk to Dillow, always receiving assurances that all was well with his case, until March 1982, when he was informed that his suit against Washington County had been dismissed.
Plaintiff employed J. Christopher Booth, a Kingsport attorney, who asserted plaintiff's malpractice claim by letter dated 22 March 1982 to Frost. On 12 April 1982, Booth wrote to Frost's lawyer asserting Frost's negligence in failing to include a cause of action for inverse condemnation pursuant to T.C.A. Sec. 29-16-123 and a claim of fraudulent concealment of the dismissal of his case for approximately one year. That letter included the following sentences:
From our viewpoint, the case was essentially decided for the defendant March 18, 1981 (T.R.C.P. 41.02(3).) I have researched some cases concerning this matter and have found that they fortify our viewpoint.
However, in spite of his firmly expressed belief that the dismissal operated as an "adjudication upon the merits", 2 Booth filed a motion on 26 May 1982 under T.R.C.P. 60.02 to set aside the Order of Dismissal entered more than a year before. On 28 June 1982 a trial judge other than the one who signed all other orders relevant to this case, granted the motion, restored the case to the docket, and allowed plaintiff thirty days to amend his complaint. Plaintiff amended by alleging a cause of action for inverse condemnation. An order of voluntary non-suit of his governmental tort liability action was entered, expressly reserving his inverse condemnation claim.
Washington County filed a plea asserting that the suit was not filed within one year of the taking and was thus barred by the statute of limitations relating to inverse condemnation actions. The trial judge sustained that plea and dismissed plaintiff's suit, for the second time, on 18 April 1983.
Plaintiff filed this malpractice action on 19 October 1983 against Frost and the Dillow law firm. Defendants pled the bar of the one year statute of limitations and moved for summary judgment. The trial judge, relying upon Banton v. Marks, 623 S.W.2d 113 (Tenn.App.1981) and Ameraccount Club Inc. v. Hill, 617 S.W.2d 876 (Tenn.1981) held that "only matters of law are in question, further, at all pertinent times the alleged negligence of defendants was irremediable relative to any claim of malpractice for more than one year prior to the filing of this cause of action." Since the malpractice action was filed within one year of the second dismissal of plaintiff's suit against Washington County, that opinion, necessarily, was based upon a finding that plaintiff's action against the county was irremediable as a result of the first dismissal on 18 March 1981.
The Court of Appeals held that, "[a]lthough the statute of limitations had begun to run in March of 1982 (when the plaintiff learned of Frost's negligence) the subsequent reinstatement of his cause of action against Washington County served to toll the running of the statute until April 18, 1983...." The intermediate court found that even if the trial court's action was erroneous in setting aside the first dismissal on a Rule 60.02(1) motion, that plaintiff's suit against the county was not irremediable until the second dismissal.
In Ameraccount Club Inc. v. Hill, supra, we held that a cause of action against an attorney for malpractice does not accrue until the date that the negligence becomes...
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