Session Date: April 17, 2015
Appeal from the Circuit Court for Davidson County No. 11C2810 Ben H. Cantrell, Judge
Beau E. Pemberton, Dresden, Tennessee, for the appellant, Spydell Davidson.
Darrell G. Townsend, Nashville, Tennessee, for the appellees, Nader Baydoun and Baydoun & Knight, PLLC.
Frank G. Clement, Jr., P.J., M.S., delivered the opinion of the Court, in which Andy D. Bennett and W. Neal McBrayer, JJ., joined.
FRANK G. CLEMENT, JR., JUDGE
From August 2005 to August 2007, Nader Baydoun and the firm of Baydoun & Knight, PLLC, ("Defendants") represented Spydell Davidson ("Plaintiff) in a lawsuit filed against him by Mid-South Industries, Inc. ("Mid-South"). Over the course of the Mid-South litigation, Plaintiff became dissatisfied with Defendants' performance, in part because Defendants, over the objection of Plaintiff, did not pursue a claim of fraud against Mid-South. The case was tried on June 19 through 21, 2007, the trial court made a ruling from the bench on June 21, and the final order was entered on August 23, 2007. Although the trial court's final order resulted in an award in Plaintiffs favor, the judgment was less than Plaintiff believed he was entitled to recover.
On August 12, 2008, Plaintiff commenced this legal malpractice action against Defendants alleging that Defendants negligently failed to present evidence of additional grounds for Plaintiffs recovery, specifically including a claim of fraud, and that Defendants' conduct deprived him of the ability to recover additional damages.
Defendants filed a motion to dismiss under Rule 12.02(6) of the Tennessee Rules of Civil Procedure arguing that Plaintiffs claim was barred by the statute of limitations. The trial court granted Defendants' motion. Plaintiff appealed, and this court reversed. See Davidson v. Baydoun, No. M2008-02746-COA-R3-CV, 2009 WL 2365563 (Tenn. Ct. App. July 31, 2009) ("Davidson I "). In Davidson I, we were careful to consider only the complaint itself as required when reviewing a motion to dismiss under Rule 12.02(6). Id. at *3; see Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011) ("The resolution of a 12.02(6) motion to dismiss is determined by an examination of the pleadings alone."). We stated:
This case was dismissed upon a Tenn. R. Civ. P. 12.02(6) motion to dismiss; therefore, we will limit our analysis to the relevant facts asserted in [Plaintiffs] Complaint, presume the alleged facts to be true and give [Plaintiff] the benefit of all reasonable inferences to be drawn from those factual allegations.
Davidson, 2009 WL 2365563, at *3 (internal citations omitted) (emphasis added).
Based solely upon our analysis of the facts asserted in the complaint, we concluded that Plaintiffs cause of action did not accrue more than a year prior to the commencement of the action, reversed the trial court's order dismissing the complaint, and remanded the case for further proceedings. Id. at *5-7.
On remand, Plaintiff voluntarily dismissed his complaint on July 26, 2010, and filed the present action on July 20, 2011. Thereafter, the parties engaged in discovery, which revealed that Plaintiff knew as early as July 31, 2007 that he had sustained an injury due to Defendants' alleged negligence because on that date Plaintiff sent Defendants a letter stating that he would "expect all my losses from this unjust lawsuit to be paid by [Defendants and others]" if Defendants did not "present the truth . . . to the Court." When asked about this letter in his deposition, Plaintiff testified that he was telling Defendants that they had been negligent and that Plaintiff was going to hold them responsible. Plaintiff also testified that Defendants' failure to assert fraud claims at the beginning of the litigation prolonged the Mid-South litigation which cost him money. Plaintiff went on to testify that as of September 2006 he thought Defendants were "doing a horrible job" and costing him "a lot of money."
Based on this information, Defendants filed a motion for summary judgment contending that Plaintiffs claim was barred by the statute of limitations. Plaintiff opposed the motion for summary judgment; however, he did not contest the authenticity of his letters or deposition testimony or dispute the facts relied upon by Defendants in support of the motion. Thus, the facts relied upon by Defendants were undisputed. Instead, Plaintiff argued ...