Damiean Devon Tolson v. John E. Herbison ( 2021 )


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  •                                                                                                        08/12/2021
    IN THE COURT OF APPEALS OF TENNESSEE
    AT NASHVILLE
    Assigned on Briefs July 1, 2021
    DAMIEAN DEVON TOLSON v. JOHN E. HERBISON
    Appeal from the Circuit Court for Davidson County
    No. 18C1755 Don R. Ash, Senior Judge
    ___________________________________
    No. M2020-01362-COA-R3-CV
    ___________________________________
    Appellant, acting pro se, appeals the trial court’s dismissal of his legal malpractice action
    against Appellee, the attorney who represented Appellant in post-conviction matters
    related to his criminal case. The trial court held that Appellant’s lawsuit was barred by the
    running of the one-year statute of limitations. Tenn. Code Ann § 28-3-104(c)(1).
    Discerning no error, we affirm and remand.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
    Affirmed and Remanded
    KENNY ARMSTRONG, J., delivered the opinion of the court, in which D. MICHAEL SWINEY,
    C.J., and KRISTI M. DAVIS, J., joined.
    Damien Devon Tolson, Wartburg, Tennessee, appellant, pro se.
    No brief filed on behalf of appellee, John Edward Herbison.
    MEMORANDUM OPINION1
    This legal malpractice case arises from Appellee John Edward Herbison’s
    representation of Appellant Damien Devon Tolson. Mr. Tolson was convicted of first-
    degree murder in Lawrence County. The Court of Criminal Appeals affirmed the
    1
    Rule 10 of the Court of Appeals of Tennessee provides:
    This Court, with the concurrence of all judges participating in the case, may affirm, reverse
    or modify the actions of the trial court by memorandum opinion when a formal opinion
    would have no precedential value. When a case is decided by memorandum opinion it shall
    be designated “MEMORANDUM OPINION”, shall not be published, and shall not be
    cited or relied on for any reason in any unrelated case.
    conviction in an opinion filed on December 28, 2006, and the Tennessee Supreme Court
    denied permission to appeal on April 16, 2007. After proceedings on direct appeal were
    concluded, Mr. Tolson retained Mr. Herbison, in or around October 2007, to seek post-
    conviction relief on Mr. Tolson’s behalf. Mr. Herbison filed a timely petition for post-
    conviction relief, and an evidentiary hearing was held on February 26, 2009. After the trial
    court denied Mr. Tolson relief, Mr. Herbison filed an appeal to the Court of Criminal
    Appeals, which affirmed the trial court’s decision on July 29, 2010. Thereafter, Mr.
    Herbison sought review in the Tennessee Supreme Court, which denied certiorari on
    January 14, 2011.
    On May 23, 2013, Mr. Tolson filed a complaint against Mr. Herbison with the
    Tennessee Board of Professional Responsibility (“the Board”) by completing and
    submitting a “Request for Assistance” form. In this form, Mr. Tolson alleged that Mr.
    Herbison failed to notify Mr. Tolson of the Tennessee Supreme Court’s denial of certiorari
    in January 2011 and also failed to answer Mr. Tolson’s emails and other correspondence.
    As a result of Mr. Herbison’s alleged errors, Mr. Tolson asserted that his writ of habeas
    corpus was denied as time-barred. The form that Mr. Tolson completed and signed
    contains the following disclaimer:
    You have a limited time (Statute of limitations) to file a legal malpractice or
    other lawsuit. Filing a complaint or Request for Assistance with the Board
    will not preserve your legal rights and remedies. You should pursue
    independent legal action and seek independent legal advice concerning your
    legal matters.
    Mr. Herbison responded to the Board complaint by letter of October 22, 2013,
    wherein he stated that, “I am confident that I sent Mr. Tolson a copy of the opinion of the
    Court of Criminal Appeals,” but admitted that he did “not independently recall whether I
    did or did not send [Mr. Tolson] a copy of the order of the Supreme Court denying the
    application for permission to appeal.” By letter of March 19, 2014, the Board informed
    Messrs. Herbison and Tolson of its decision. The Board found “that a violation(s) of the
    Rules of Professional Conduct did occur” and noted that “[a]ppropriate private disciplinary
    action has been taken.”
    While his complaint was pending with the Board, Mr. Tolson filed his initial legal
    malpractice action against Mr. Herbison in the Federal District Court for the Middle
    District of Tennessee on October 18, 2013. On October 6, 2016, the Sixth Circuit Court
    of Appeals affirmed the district court’s dismissal of the lawsuit.2 Thereafter, on July 9,
    2018, Mr. Tolson, acting pro se, filed the instant legal malpractice action against Mr.
    2
    Our record does not contain any documents from the federal lawsuit. Accordingly, we take this
    information from averments made by Mr. Tolson to the Board and in the trial court, and from the findings
    set out in the trial court’s order dismissing Mr. Tolson’s lawsuit.
    -2-
    Herbison in the Circuit Court for Davison County (“trial court”). In his complaint, Mr.
    Tolson reiterated the allegations previously made with the Board and requested the trial
    court to: (1) issue an injunction against Mr. Herbison; (2) reimburse Mr. Tolson $15,000
    in corrective and restorative fees for breach of contract; and (3) reinstate Mr. Tolson’s case.
    On September 4, 2020, the trial court dismissed Mr. Tolson’s lawsuit on the ground
    that the complaint was time-barred under the applicable one-year statute of limitations.
    
    Tenn. Code Ann. § 28-3-104
    (c)(1). On September 11, 2020, Mr. Tolson filed a motion
    to alter or amend the judgment; the trial court denied the motion by order of October 16,
    2020. Mr. Tolson appeals.
    Although Mr. Tolson raises several issues for review, the dispositive issue in this appeal
    is simply whether the trial court erred in dismissing Mr. Tolson’s legal malpractice action
    on the ground that the statute of limitations had run.
    Whether a claim is barred by an applicable statute of limitations is a question of law.
    Brown v. Erachem Comilog, Inc., 
    231 S.W.3d 918
    , 921 (Tenn. 2007); Owens v.
    Truckstops of Am., 
    915 S.W.2d 420
    , 424 (Tenn. 1996). We review the trial court’s
    resolution of questions of law de novo, with no presumption of correctness. Kelly v. Kelly,
    
    445 S.W.3d 685
    , 692 (Tenn. 2014); Armbrister v. Armbrister, 
    414 S.W.3d 685
    , 692 (Tenn.
    2013).
    Before turning to the issue, we note that Mr. Tolson is proceeding pro se in this appeal.
    Courts should consider that many pro se litigants have no legal training and little familiarity
    with the judicial system. Garrard v. Tenn. Dep’t of Corr., No. M2013-01525-COA-R3-
    CV, 
    2014 WL 1887298
    , at *3 (Tenn. Ct. App. May 8, 2014) (internal citations omitted).
    Therefore, the courts give pro se litigants, who are untrained in the law, a certain amount
    of leeway in drafting their pleadings and briefs. Whitaker v. Whirlpool Corp., 
    32 S.W.3d 222
    , 227 (Tenn. Ct. App. 2000); Paehler v. Union Planters Nat’l Bank, Inc., 
    971 S.W.2d 393
    , 397 (Tenn. Ct. App. 1997). However, “[p]ro se litigants who invoke the complex and
    technical procedures of the courts assume a very heavy burden.” Irvin v. City of
    Clarksville, 
    767 S.W.2d 649
    , 652 (Tenn. Ct. App. 1989). While a party who chooses to
    represent himself or herself is entitled to the fair and equal treatment of the courts, Hodges
    v. Tenn. Att’y Gen., 
    43 S.W.3d 918
    , 920 (Tenn. Ct. App. 2000), “[p]ro se litigants are not
    . . . entitled to shift the burden of litigating their case to the courts.” Whitaker, 
    32 S.W.3d at 227
    . Instead, pro se litigants are held to the same procedural and substantive standards
    to which lawyers must adhere. Diggs v. Lasalle Nat. Bank Assoc., 
    387 S.W. 3d 559
    , 563
    (Tenn. Ct. App. 2012); Brown v. Christian Bros. University, No. W2012-01336-COA-R3-
    CV, 
    2013 WL 3982137
    , at *3 (Tenn. Ct. App. Aug. 5, 2013), perm. app. denied (Tenn.
    Jan. 15, 2014).
    -3-
    The applicable statute of limitations for legal malpractice claims is found at Tennessee
    Code Annotated section 28-3-104(c), to-wit:
    (c)(1) Actions and suits against licensed public accountants, certified public
    accountants, or attorneys for malpractice shall be commenced within one (1)
    year after the cause of action accrued, whether the action or suit is grounded
    or based in contract or tort.
    (2) In no event shall any action or suit against a licensed public accountant,
    certified public accountant or attorney be brought more than five (5) years
    after the date on which the act or omission occurred, except where there is
    fraudulent concealment on the part of the defendant, in which case the action
    or suit shall be commenced within one (1) year after discovery that the cause
    of action exists.
    
    Tenn. Code Ann. § 28-3-104
    (c)(1)-(2). In John Kohl Co., P.C. v. Dearborn & Ewing, 
    977 S.W.2d 528
     (Tenn. 1998), the Tennessee Supreme Court explained that
    [t]he statute of limitations for legal malpractice is one year from the time the
    cause of action accrues. 
    Tenn. Code Ann. § 28-3-104
    (a)(2).3 When the cause
    of action accrues is determined by the discovery rule. 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. Shadrick v. Coker, 
    963 S.W.2d 726
    , 733 (Tenn. 1998); Stanbury v. Bacardi, 
    953 S.W.2d 671
    , 677
    (Tenn. 1997)).
    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. Carvell v. Bottoms, 
    900 S.W.2d 23
    , 28-30 (Tenn. 1995).
    ***
    The knowledge component of the discovery rule may be established
    by evidence of actual or constructive knowledge of the injury. Carvell, 
    900 S.W.2d at 29
    . 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
    3
    The relevant portion of this statute is now found at 
    Tenn. Code Ann. § 28-3-104
    (c)(1).
    -4-
    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. 
    Id.
    John Kohl & Co., P.C., 
    977 S.W.2d at 532-33
    . See also Riddle v. Carlton, No. W2011-
    02145-COA-R3-CV, 
    2012 WL 1948870
    , at *3 (Tenn. Ct. App. May 31, 2012).
    In reaching its decision that the statute of limitations had run on Mr. Tolson’s legal
    malpractice claims, the trial court specifically found that:
    Under the most liberal interpretation of the [] Complaint, Tolson became
    aware of the alleged malpractice by Herbison on October 18, 2013, when
    Tolson filed a legal malpractice claim against [Herbison] in Federal Court.
    Considering Tennessee’s one-year statute of limitations period for legal
    malpractice claims, even if the Court accepted Tolson’s allegations as true,
    Tolson can prove no set of facts in support of his claims which would entitle
    him to relief. . . . Based upon Rule 12.02(b)(6) of the Tennessee Rules of
    Civil Procedure and all applicable authority, the Court dismisses the [] legal
    malpractice action for failure to state a claim upon which relief may be
    granted.
    As discussed above, in his complaint, Mr. Tolson alleged that Mr. Herbison failed
    to make timely filings and also failed to properly communicate with Mr. Tolson regarding
    the status of his post-conviction criminal matters. There can be no doubt that Mr. Tolson
    was aware of these alleged shortcomings by October 18, 2013, when he filed his initial
    lawsuit in federal court. However, more realistically, Mr. Tolson was aware of facts
    sufficient to form the basis of his lawsuit by May 23, 2013 when he filed the complaint
    against Mr. Herbison with the Board. From his averments to the Board, Mr. Tolson
    contends that Mr. Herbison’s failure to correspond with Mr. Tolson concerning the
    Tennessee Supreme Court’s denial of certiorari in his post-conviction matters resulted in
    the untimely filing of his writ of habeas corpus. It is well settled the loss of a legal right or
    remedy can serve as a “legally cognizable injury.” See Cherry v. Williams, 
    36 S.W.3d 78
    ,
    84 (Tenn. Ct. App. Apr. 17, 2000) (explaining that a legally cognizable injury occurs when
    a court renders judgment). Furthermore, a “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 injury as a result of wrongful conduct.” Riddle, 
    2012 WL 1948870
    , at *3
    (quoting Honeycutt v. Wilkes, McCullough & Wagner, No. W2007-00185-COA-R3-CV,
    
    2007 WL 2200285
    , at *8 (Tenn. Ct. App. Aug. 2, 2007)).
    -5-
    Applying the most liberal analysis concerning when Mr. Tolson became aware of
    his potential legal malpractice claims against Mr. Herbison, the latest date would be May
    23, 2013, when he filed his complaint with the Board. Applying the May 23, 2013 date,
    it is clear that Mr. Tolson’s initial lawsuit in federal court was timely as it was filed on
    October 18, 2013, which was within one year of the May 23, 2013 date. The question, then,
    is whether the filing of the lawsuit in federal court worked to toll the statute of limitations
    in the state lawsuit.
    Tennessee Code Annotated section 28-1-115 provides that,
    [n]otwithstanding 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.
    The record is silent as to the date the district court rendered its decision in Mr. Tolson’s
    federal lawsuit. However, we know that the district court’s dismissal of the lawsuit was
    affirmed by the Sixth Circuit Court of Appeals on October 6, 2016.4 Although it is not
    clear whether the federal lawsuit was dismissed “for lack of jurisdiction” so as to trigger
    section 28-1-115, even giving Mr. Tolson the benefit of the doubt and assuming that the
    basis of the decision was lack of jurisdiction, his state case was filed outside the applicable
    statute of limitations. Applying section 28-1-115, and giving Mr. Tolson the most
    expansive reading thereof, Mr. Tolson had, at the very most, one-year from October 6,
    2016 (the date of the circuit court’s dismissal of the federal action) to file his state lawsuit,
    i.e., October 6, 2017. Mr. Tolson’s lawsuit, however, was filed in the trial court on July 9,
    2018, which was well outside the one-year statute of limitation. As such, the trial court
    properly dismissed Mr. Tolson’s lawsuit as time-barred.
    Before concluding, we briefly address Mr. Tolson’s argument that the “Statute of
    Repose,” Tennessee Code Annotated section 28-3-104(c)(2), supra, operates to save his
    lawsuit. Mr. Tolson’s reliance on section 28-3-104(c)(2) is misplaced. 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. 
    Tenn. Code Ann. § 28-3-104
    (c)(2). There is simply no indication that Mr. Herbison engaged in fraudulent
    concealment in this case. Rather, as discussed above, Mr. Tolson was fully aware of Mr.
    Herbison’s alleged errors at the time he filed his complaint with the Board.
    4
    We make no finding concerning whether the one-year extension of the statute of limitations under
    Tennessee Code Annotated section 28-1-115 would be triggered by the district court’s decision or whether
    the statute would toll the statute of limitations through the federal appellate process. As noted above, we
    do not know the date of the district court’s dismissal of Mr. Tolson’s lawsuit, but we do know the date of
    the circuit court’s adjudication. So, again giving Mr. Tolson the most expansive reading of the statute, we
    will calculate the statute of limitations from the date of the circuit court’s dismissal.
    -6-
    For the foregoing reasons, we affirm the trial court’s dismissal of Mr. Tolson’s
    lawsuit. The case is remanded for such further proceedings as may be necessary and are
    consistent with this opinion. Costs of the appeal are assessed against the Appellant,
    Damiean Devon Tolson. Because Mr. Tolson is proceeding in forma pauperis in this
    appeal, execution for costs may issue if necessary.
    s/ Kenny Armstrong
    KENNY ARMSTRONG, JUDGE
    -7-