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Thomas v. Myers

Court of Appeals of Tennessee, Jackson

October 19, 2017

MARK T. THOMAS
v.
RICHARD J. MYERS ET AL.

          Session September 18, 2017

         Appeal from the Circuit Court for Shelby County No. CT-004397-15 William B. Acree, Senior Judge

         This is a legal malpractice case. Appellees, who are licensed attorneys, represented Appellant in a trademark infringement and consumer protection lawsuit in federal court that resulted in a judgment against Appellant. On October 21, 2015, more than a year after the federal court judgment, Appellant filed a complaint for misrepresentation and negligence against Appellees. The trial court interpreted Appellant's claims against Appellees as a legal malpractice action and granted Appellees' motion for summary judgment on the ground that the one-year statute of limitations had expired prior to commencement of the action. Tenn. Code Ann. § 28-3-104(c)(1). We affirm the trial court's judgment and remand.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and Remanded

          Duncan E. Ragsdale, William R. Bruce, Memphis, Tennessee, for the appellant, Mark T. Thomas.

          Richard Glassman, Lacey Adair Bishop, Lauran G. Stimac, Clinton Crosier, Memphis, Tennessee, for the appellees, Richard J. Myers, and Apperson Crump, PLC.

          Kenny Armstrong, J., delivered the opinion of the court, in which Arnold B. Goldin and Brandon O. Gibson, JJ., joined.

          OPINION

          KENNY ARMSTRONG, JUDGE.

         I. Background

         In March 2012, Richard Myers and the law firm of Apperson Crump, PLC (together, "Appellees") represented Mark Thomas ("Appellant") in a trademark infringement and consumer protection case in federal court ("federal suit"). Mr. Thomas was the defendant in the federal suit, and Fontaine Taylor was the plaintiff; both Mr. Thomas and Ms. Taylor are real estate agents. In the federal suit, Ms. Taylor alleged that Mr. Thomas' real estate sign was nearly identical to hers, infringed on her trademark, and violated the Tennessee Consumer Protection Act ("TCPA"). After a jury trial, the district court entered judgment in favor of Ms. Taylor on April 28, 2014. Ms. Taylor was awarded $36, 500.00 in damages under the TCPA, $60, 770.00 for Mr. Thomas' violation of the Lanham Act, and an additional $36, 500.00 because Mr. Thomas' violation of the TCPA was done knowingly. Ms. Taylor also received a judgment for $237, 982.01 in attorney's fees and $9, 901.01 in additional costs. In addition, Ms. Taylor was granted a permanent injunction enjoining Mr. Thomas from using the skyline sign. Mr. Thomas appealed to the Sixth Circuit Court of Appeals, which affirmed the district court's award on August 3, 2015.

         On October 21, 2015, Mr. Thomas filed a Complaint in the Shelby County Circuit Court ("trial court") against Appellees for misrepresentation and negligence in connection with Appellees' representation in the federal suit. A month later, on November 20, 2015, Mr. Thomas amended his Complaint to add a claim for violation of the TCPA. On January 20, 2016, Mr. Thomas non-suited the negligence claims and proceeded on the misrepresentation and the TCPA claims. Appellees filed their Answer on January 27, 2016.

         On July 21, 2016, Appellees filed a Tennessee Rule of Civil Procedure 12.02 motion to dismiss the TCPA claim and a motion for summary judgment on the misrepresentation claims. In the motion for summary judgment, Appellees argued that the Appellant's claims sounded in legal malpractice and that the statute of limitations for legal malpractice had run. Mr. Thomas opposed these motions. The trial court heard the motions on November 2, 2016, and granted Appellees' motions by order of November 9, 2016. Specifically, the trial court: (1) denied Mr. Thomas' motion for partial summary judgment finding that the case sounded in legal malpractice not misrepresentation; (2) granted Appellees' Rule 12.02 motion dismissing the TCPA claim; and (3) granted Appellees' motion for summary judgment on the legal malpractice claim finding that Mr. Thomas' lawsuit was barred by the one year statute of limitations. Mr. Thomas appeals.

         II. Issues

         At oral argument, Appellant conceded this is solely a legal malpractice action. Therefore, we perceive that the sole dispositive issue is: Whether the trial court erred in granting summary judgment on the ground that the statute of limitations for Appellant's legal malpractice action had run.

         III. Standard of Review

         A trial court's decision to grant a motion for summary judgment presents a question of law. Therefore, our review is de novo with no presumption of correctness afforded to the trial court's determination. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). This Court must make a fresh determination that all requirements of Tennessee Rule of Civil Procedure 56 have been satisfied. Abshure v. Methodist Healthcare-Memphis Hosps., 325 S.W.3d 98, 103 (Tenn. 2010). When a motion for summary judgment is made, the moving party has the burden of showing that "there is no genuine ...


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