Donna Frazier v. Sidney Jackson, et al

Filing

OPINION filed : AFFIRMED, decision not for publication. R. Guy Cole , Jr., Circuit Judge; Jeffrey S. Sutton, Circuit Judge and Robert H. Cleland, U.S. District Judge for the Eastern District of Michigan.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0297n.06

FILED

Case No. 13-6045
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

DONNA FRAZIER, Individually and as Personal
Representative of the Estate of Joseph Frazier,
Plaintiff-Appellant,
v.
SIDNEY JACKSON; KEVIN GRAHAM;
JACKSON, FOSTER & RICHARDSON, LLC,
Successor in Interest Jackson, Foster & Graham;
BEASLEY, ALLEN, CROW, METHVIN,
PORTIS & MILES, PC; MICHAEL PADWAY;
MICHAEL PADWAY & ASSOCIATES,
Defendants-Appellees.

BEFORE:

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Apr 21, 2014
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF TENNESSEE

OPINION

COLE and SUTTON, Circuit Judges; CLELAND, District Judge.*

COLE, Circuit Judge. Donna Frazier brought this suit against her former attorneys,
alleging that they committed malpractice by mishandling claims pertaining to her husband’s
illness and death from mesothelioma. The district court concluded that Frazier’s suit was timebarred under Tennessee’s one-year limitations period for malpractice actions and granted
summary judgment in favor of the defendants. The sole question presented on appeal is whether

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The Honorable Robert H. Cleland, United States District Judge for the Eastern District of
Michigan, sitting by designation.

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Frazier suffered her alleged injuries more than one year before filing. Because we agree with the
district court that she did, we affirm its grant of summary judgment.
I. BACKGROUND
A. Factual Background
From 1948 to 1972, Joseph Frazier was exposed to asbestos while working in the
construction industry.

He was diagnosed with mesothelioma in 2002 and contacted the

defendants after seeing a television commercial advertising legal help for victims of the disease.
That summer, Mr. Frazier hired the defendants to represent him and signed a contingent fee
agreement.
In September 2002, the defendants filed Mr. Frazier’s asbestos-related claims in a
consolidated action in Mississippi state court. Mr. Frazier died from his disease on January 20,
2004, while that case was pending. The Mississippi court dismissed his claims without prejudice
on improper venue grounds in August 2005. The defendants then joined Mr. Frazier’s claims to
another consolidated case, this one filed in Alabama state court, in August 2006—over two years
after his death.) Although Alabama imposes a two-year statute of limitations for wrongful-death
actions, see Ala. Code § 6-5-410(d), the defendants evidently sought to preserve the Fraziers’
claim in Alabama by arguing that Mississippi’s “savings clause” applied, see Miss. Code Ann.
§ 15-1-69.
During the Alabama proceedings, in the fall of 2009, Mr. Frazier’s widow (hereinafter
“Frazier”) terminated her relationship with the defendants and enlisted attorney Scott Hendler to
take over the case. Hendler wrote to defendant Graham in October 2011, noting that the
Alabama defendants were “now raising the issue of limitations” due to the date of Mr. Frazier’s
death, and asking whether Graham had any authority to support his contention that Mississippi’s

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savings clause applied to toll the statute of limitations for a case filed in another jurisdiction.
One of the Alabama defendants filed a motion to dismiss on limitations grounds on October 28,
2011, which another defendant quickly joined. Hendler filed a response on December 1, 2011.
The Alabama court dismissed Frazier’s claims as time-barred on February 2, 2012.
In addition to filing cases in Mississippi and Alabama, the defendants pursued, and in
some cases obtained, monetary settlements on behalf of the Fraziers. Frazier contends that the
defendants agreed to unreasonably low settlements with some parties and withheld her share of
the proceeds from three of the settlements. In particular, Frazier’s new attorney, Hendler, states
that counsel for the United States Steel Corporation informed him in November 2011 that the
company had settled a claim with Frazier in 2007. Frazier alleges that she never consented to the
settlement, was never told of it, and never received any funds from it.
B. Procedural History
Frazier filed this suit against the defendant attorneys and law firms on October 30, 2012,
in the United States District Court for the Eastern District of Tennessee. She alleges that the
defendants committed malpractice when they (1) joined her husband’s claims to consolidated
actions in Mississippi and Alabama, rather than file his claims in Illinois, where his asbestos
exposure occurred; (2) failed to investigate adequately his claims and file suit against OwensIllinois, Inc.; (3) failed to file a wrongful-death case within the two-year limitations period;
(4) associated other attorneys in handling the Mississippi and Alabama lawsuits without the
Fraziers’ permission; (5) failed to obtain the Fraziers’ consent to settle with United States Steel;
(6) neglected to pay the Fraziers their portions of settlements with the Flintkote Co., General
Electric, and United States Steel; (7) obtained unreasonably low settlements from CerainTeed
Corp., Johns Manville, Crown, Cork & Seal, and CSR Ltd.; and (8) generally misrepresented the

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strength of the Fraziers’ claims to induce them to settle. As a result of this negligence and
breach of fiduciary duty, Frazier alleges, her total recovery is substantially lower than it might
have been.
The defendants moved to dismiss for failure to state a claim, or in the alternative, for
summary judgment, on the basis that Frazier’s claims were time-barred, and for other reasons.
The district court granted summary judgment on July 19, 2013, upon concluding that
Tennessee’s one-year statute of limitations for legal malpractice had expired before Frazier filed
her complaint. Frazier timely appealed. The district court had jurisdiction under 28 U.S.C.
§ 1332, and we have jurisdiction under 28 U.S.C. § 1291.
II. ANALYSIS
This case involves only one question: whether Frazier suffered all injuries due to the
defendants’ alleged misconduct more than one year before filing her malpractice lawsuit. If so,
the statute of limitations has expired, and we must affirm the district court.
A. Tennessee’s Statute of Limitations for Malpractice Claims
In Tennessee, attorney malpractice claims must be brought within one year of the date the
cause of action accrued. Tenn. Code. Ann. § 28-3-104(a)(2). A cause of action accrues when
two conditions are met: “(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.” John Kohl & Co. v. Dearborn &
Ewing, 977 S.W.2d 528, 532 (Tenn. 1998) (citation omitted).

In John Kohl & Co., the

Tennessee Supreme Court defined an “actual injury” as “the loss of a legal right, remedy or
interest, or the imposition of a liability.” Id. (citation omitted). However, a plaintiff is also

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injured if the defendant’s negligence caused her “to take some action or otherwise suffer ‘some
actual inconvenience,’ such as incurring an expense.” Id. (quoting State v. McClellan, 85 S.W.
267, 270 (Tenn. 1905)).
The district court concluded that Frazier had suffered an “actual inconvenience,” and
therefore a legally cognizable injury, at one of two points: either when she terminated the
defendants’ representation in 2009 and hired a new attorney, or when the new attorney, Hendler,
contacted defendant Graham with concerns that the Alabama claim might be time-barred, on
October 11, 2011. In either case, Frazier’s injury occurred more than one year before she filed
her complaint.
Frazier does not dispute the district court’s conclusion that she had actual or constructive
knowledge of her injuries arising from the defendants’ representation more than one year before
filing her complaint for malpractice. She argues only that she was not injured until her Alabama
case was dismissed in February 2012. We review the district court’s grant of summary judgment
de novo, and we view all evidence “in the light most favorable to the non-moving party.” Hayes
v. Equitable Energy Res. Co., 266 F.3d 560, 566 (6th Cir. 2001).
B. Frazier’s Malpractice Claims
The parties encourage us to determine what kind of action entails a sufficiently serious
“inconvenience” to amount to an injury under Tennessee law. But this case does not require us
to do so. Notwithstanding Frazier’s claim that each of the alleged acts of malpractice caused a
“single indivisible injury,” the acts can be divided into two groups: those pertaining to the
mishandling of litigation, and those pertaining to deficient representation during and after
settlement negotiations. For both groups, the claims are time-barred.

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First, Frazier alleges that the defendants acted negligently when they opted to file suit in
Mississippi and then Alabama, not Illinois, where her husband suffered asbestos exposure. As a
result, they failed to bring claims against the appropriate parties in Illinois within two years of
her husband’s death. See 740 Ill. Comp. Stat. 180 / 2. Frazier was injured by the defendants’
litigation-related blunders in January 2006, when the limitations period expired for filing a
wrongful death action in Illinois. See Wilkins v. Dodson, Parker, Shipley, Behm & Seaborg,
995 S.W.2d 575, 580 (Tenn. Ct. App. 1998) (concluding, in malpractice claim, “that the plaintiff
suffered an injury under the Kohl analysis when the statute of limitations applicable to the
[plaintiff’s] lawsuit expired”); Smith v. Petkoff, 919 S.W.2d 595, 597 (Tenn. Ct. App. 1995).
When her Illinois claim expired, Frazier undoubtedly lost a “legal right, remedy or interest.”
John Kohl & Co., 977 S.W.2d at 532. Thus, we affirm the district court’s dismissal of Frazier’s
claims relating to the litigation in Mississippi and Alabama and to the defendants’ failure to file a
suit in Illinois.
Second, Frazier alleges that the defendants entered into settlements for inadequate
amounts, and more generally, that they misrepresented the strength of her legal claims to induce
her to settle. She also claims that the defendants settled with United States Steel and possibly
other parties without her consent and without remitting her share of the proceeds.
Beginning with the settlements that Frazier claims were inadequate, a letter from
defendant Graham to Frazier dated November 3, 2009, establishes that the defendants had
already settled with Crown, Cork & Seal, CSR, Johns Manville, and CertainTeed. The letter
further indicated that Frazier had already received proceeds from the first two settlements and
that the CertainTeed settlement funds had not yet been collected. The defendants sent Frazier
her share of the Johns Manville and CertainTeed settlements shortly thereafter.

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The Tennessee Court of Appeals has considered the question of when, exactly, a plaintiff
suffers an injury due to her attorney’s failure to obtain a sufficiently large settlement. Swett v.
Binkley, 104 S.W.3d 64, 67 (Tenn. Ct. App. 2002). In Swett, the court concluded that the
plaintiff’s injury occurred when she signed the settlement agreement. At that point, she knew
that her attorney “had not recovered all he allegedly said he would” and that the settlement
amount was all she would receive. Id. While Swett did not discuss the injury requirement
separately from the knowledge requirement, the court made it clear that the plaintiff’s injury took
place either at the same time as, or before, she became aware of the settlement amount and
agreed to it. Id. This approach makes sense, because in agreeing to settle an existing or potential
claim, an individual relinquishes other possible remedies. See John Kohl & Co., 977 S.W.2d at
532 (holding that an injury occurs when one loses a “legal right, remedy or interest”).
In the case at hand, Graham’s letter establishes that the allegedly deficient settlements
had occurred as of November 2009. Frazier does not contradict this timeline. If the settlements
were deficient, Frazier was injured when they were reached, and certainly no later than
November 2009. Given that she does not dispute the knowledge component of accrual for these
claims, they are time-barred.
Next, Frazier alleges that the defendants entered into settlements with United States Steel,
Flintkote, and General Electric, but then failed to send Frazier her share of the recovery. She
further contends that the defendants settled her claim against United States Steel without her
consent and without ever informing her. The defendants assert that no settlements were ever
reached with these parties. Assuming that Frazier’s allegations are true—and noting that there is
some evidence in the record indicating that a settlement was reached with United States Steel—
Frazier nonetheless waited more than one year from the accrual of her claims to file a complaint

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against the defendants. If indeed the defendants reached any settlements with these parties, they
must have done so no later than the fall of 2009, when Frazier terminated their representation of
her. Accordingly, Frazier’s alleged injuries occurred more than one year before she filed.
As a final matter, Frazier contends, in a single footnote, that she did not have knowledge
of the injury arising from the defendants’ failure to turn over the United States Steel proceeds
until less than one year after filing her malpractice action. But she has neglected to preserve this
issue. See United States v. Johnson, 440 F.3d 832, 845–46 (6th Cir. 2006) (argument raised in a
“single footnote and . . . not otherwise developed” is considered forfeited). Frazier does not
address the knowledge factor at all in the main text of her brief, nor does she counter the district
court’s conclusion that she should have known of any possible injuries arising from the
defendants’ handling of her settlement negotiations when she terminated their representation in
the fall of 2009. This claim, then, is also time-barred.
III. CONCLUSION
We affirm the district court’s grant of summary judgment to the defendants.

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