Frazier v. Jackson et al

Filing 71

ORDER granting 24 36 Defendants' motions to dismiss, or in the alternative motions for summary judgment; Plaintiffs' motions for leave to file supplemental exhibits 53 60 are GRANTED; the joint motion to dismiss, o r in the alternative for summary judgment, by Defendants Beasley, Allen, Crow, Methvin, Portis, & Miles, PLLC; Jackson, Foster, & Richardson; Sidney Jackson; and Kevin Graham 12 is DENIED AS MOOT; Defendants' motion to stay 40 is DENIED AS MOOT. Signed by District Judge William O Bertelsman on July 19, 2013. (AYB)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TENNESSEE
NORTHERN DIVISION AT KNOXVILLE

CIVIL ACTION NO. 3:12cv0564 (WOB-HBG)
DONNA FRAZIER, Individually and
As Personal Representative of the
Estate of JOSEPH FRAZIER
VS.

PLAINTIFF

MEMORANDUM OPINION AND ORDER

SIDNEY JACKSON, ET AL.

DEFENDANTS

This matter is before the Court on all pending motions (Docs.
12, 24, 36, 40, 53, and 60).
The Court heard telephonic oral argument on all pending
motions on Friday, June 28, 2013.

After oral argument, the

Court took the motions under advisement and allowed the parties
to file supplemental briefs on the issues discussed at the
hearing.

See Doc. 64.

Having reviewed the written filings and heard from the
parties, and being otherwise sufficiently advised, the Court
hereby finds, for the reasons that follow, that the Plaintiffs’
legal malpractice action is barred by Tenn. Code Ann. § 28–3–
104(a)(2).

Factual and Procedural Background
This legal malpractice action, filed by Donna Frazier1
individually and the Frazier Estate (“the Plaintiffs”), arises
out of the representation of Joseph Frazier and the Frazier
Estate by the law firms Beasley, Allen, Crow, Methvin, Portis, &
Miles, PLLC (“Beasley Allen”); Jackson, Foster, & Richardson,
LLC (“Jackson Foster”); and Michael Padway and Associates
(“Padway”).

The Plaintiffs also assert claims against Attorneys

Kevin Graham, Sidney Jackson, and Michael Padway individually.
See Doc. 28 at ¶¶ 5, 6, 9.

Unless referred to individually, all

Defendants will be referred to collectively as “the Defendants.”
Joseph Frazier contracted mesothelioma as a result of
occupational exposure to asbestos-containing products while
working in various capacities, primarily in Illinois, from 1948
to 1972.

Id. at ¶ 15.

disease in April 2002.

Mr. Frazier was diagnosed with the
Id.

From his Tennessee home in June 2002, Mr. Frazier saw an
advertisement regarding mesothelioma claims run by Defendant
Padway.

Id. at ¶ 17.

Mr. Frazier contacted the phone number on

the advertisement, and Kevin Graham – an attorney with Defendant

1

Donna Frazier is the widow of Joseph Frazier and the personal
representative of her late husband’s estate. See Doc. 68 at ¶ 2.

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law firm Jackson Foster – responded by traveling to Mr.
Frazier’s home in Tennessee.2

Id. at ¶ 18.

During this meeting, Mr. Frazier signed an attorney-fee
agreement with Jackson Foster, Beasley Allen, and Padway.3
at ¶ 19.

Id.

Subsequently, in September 2002, Graham filed Mr.

Frazier’s action along with other asbestos-disease plaintiffs in
a consolidated action in Mississippi.

Id. at ¶ 20.

On January 20, 2004, while his case was pending in
Mississippi, Mr. Frazier died from mesothelioma.

Id. at ¶ 21.

Ultimately, the Mississippi Court dismissed his claim without
prejudice on improper venue grounds in August 2005.

Id. at ¶

20.
Throughout the Defendants’ representation of Mr. Frazier
and his estate, the Defendants negotiated settlements with the
2

The majority of the correspondence that has been attached to various
pleadings and motions in this case indicates that Kevin Graham was the main
point-of-contact for Joseph & Donna Frazier throughout the Defendants’
representation of Mr. Frazier and his estate.
3
Defendant Padway asserts in its motion to strike/motion for summary
judgment that “[t]he agreement was not signed by, for, or on behalf of
Defendant Padway.” See Doc. 25 at p. 2. However, the fee agreement signed
by Mr. Frazier clearly listed Michael Padway & Associates as counsel to
represent Mr. Frazier. See Doc. 28-2. Additionally, the Plaintiffs filed a
motion to supplement their response to Padway’s motion to strike/motion for
summary judgment in which the Plaintiffs proffered a telefax from Beasley
Allen to Padway which states, in part, “We will ask the clients to sign a
joint fee contract that meets your approval with all our names on it.” See
Doc. 60-1. In response to the Plaintiffs’ motion for leave, Padway asserts
that the Plaintiffs received this document on April 8, 2013, but did not move
to supplement until May 6, 2013. See Doc. 62 at p. 2. While not the
speediest of requests, the Plaintiffs’ proffered document is highly probative
of this minor issue, and, thus, the Plaintiffs’ motion (Doc. 62) will be
granted. With the telefax correspondence and the fee agreement clearly
naming Padway as one of Mr. Frazier’s counsel, the Plaintiffs have offered
enough evidence to conclude that Padway was a party to the fee agreement in
question.

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Johns-Manville Trust; CSR; Crown, Cork, & Seal; and CertainTeed.
Id. at ¶¶ 37, 38, 40.

Kevin Graham notified the Plaintiffs of

the CertainTeed settlement on November 5, 2003; the Crown Cork &
Seal settlement on July 7, 2004; the CSR settlement on April 7,
2006; and the Johns-Manville settlement on November 3, 2009.
See Doc. 29-4 at Exs. B, C, D, E.
The Plaintiffs also assert that they were advised of
potential settlements with General Electric, Flintkote, Georgia
Pacific, and U.S. Steel, but they never received any proceeds of
these settlements.

Id. at ¶¶ 42, 43, 45.

After Mr. Frazier’s claim was dismissed in Mississippi,
Defendant Graham re-filed Mr. Frazier’s action (now a wrongful
death action) in August 2006 in an already-pending consolidated
action in Alabama titled Moman, et al. v. Ace Hardware Corp., et
al.

Id. at ¶ 22.
On September 20, 2009, the Frazier Estate, via letter,

terminated Beasley Allen as its counsel concerning the Frazier
Estate’s wrongful death claim.

See Doc. 12-1, Ex. 1.

In

October 2009, the Frazier Estate terminated Kevin Graham’s
representation, which effectively also terminated Jackson
Foster’s representation.

See Doc. 12-2, Ex. A.

On November 10, 2009, Scott Hendler, the Plaintiffs’ new
counsel and their counsel in this litigation, sent a letter to
Graham requesting all documents associated with the settlements

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obtained by Defendants; requesting any documents relating to
Defendants’ association with other attorneys; and outlining
concerns about Graham’s calculation of the Johns-Manville
settlement proceeds.

See Doc. 12-6.

In December 2009, Attorney Hendler entered an appearance on
behalf of the Frazier Estate in the still-pending Alabama
action.

See Doc. 12-5.

On August 6, 2010, the Frazier Estate filed a motion in the
Moman action to sever its claims from those of the other Moman
plaintiffs.
3, 2011.

See Doc. 12-7.

That motion was granted on January

See Doc. 12-8.

On June 2, 2011, the Frazier Estate moved to have its claim
dismissed on forum non conveniens grounds, arguing that Illinois
rather than Alabama would be the proper forum for the Frazier
Estate’s claims.

See Doc. 12-10.

On June 30, 2011, the

asbestos defendants filed a response to the motion.
12-11.

See Doc.

Ultimately, the Frazier Estate withdrew its forum non

conveniens motion.
On October 11, 2011, Attorney Hendler sent the following
email to Defendant Graham:
The defendants are now raising the issue of
limitations in the Frazier case based on the date of
death and the first date of filing in Alabama. None
seemed to be aware of the previous filing in
Mississippi
or
his
deposition.
It
was
my
understanding that you filed in Alabama under Miss.
Code sec. 15-1-9 [sic] after being dismissed from

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Mississippi which you believed provide [sic] a
tolling period of sorts to re-file the case in
another
appropriate
jurisdiction.
That
code
provision is attached but I don’t fully understand
the legal analysis that allows for the period of
time to re-file the case in another State such as
Alabama. Is there Alabama law that recognizes the
Mississippi Savings Statute that your [sic] relied
on?
See Doc. 67-2.
On October 26, 2011, Plaintiffs filed an Amended Complaint
in the Moman action.

See Doc. 12-12.

On October 28, 2011, the

asbestos defendants filed a motion to dismiss the Frazier
Estate’s Amended Complaint on statute of limitations grounds.
See Doc. 12-13.
The asbestos defendants argued that the Frazier Estate was
required to file the wrongful death action within two (2) years
of Mr. Frazier’s death pursuant to Ala. Code § 6-5-410(d) –
Alabama’s two-year statute of limitations for wrongful death
claims.

Id.

Thus, the asbestos defendants argued, the Frazier

Estate’s failure to file the wrongful death action by January
20, 2006 – the two-year anniversary of Mr. Frazier’s death –
necessitated dismissal of the wrongful death claim.

Id.

The Frazier Estate responded on December 1, 2011, arguing
that Mississippi’s one-year Savings Statute should apply and
toll the Alabama statute of limitations.

See Doc. 12-15.

February 2, 2012, the Alabama Court granted the asbestos

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On

defendants’ motion and dismissed the case as time-barred.

See

Doc. 12-16.
Plaintiffs filed this legal malpractice action against the
Defendants on October 30, 2012.

See Doc. 1.

Plaintiffs’

allegations of malpractice can be summarized as follows:


Defendants’
filing
of
Mr.
Frazier’s
underlying
asbestos
litigation
in
Mississippi
rather
than
Illinois. See Doc. 28 at ¶ 53(d).



Defendants’
filing
of
Mr.
Frazier’s
underlying
asbestos litigation in Alabama rather than Illinois.
Id.



Defendants’
failure
to
properly
investigate
Mr.
Frazier’s claims for the purposes of filing the case
in Illinois and failing to file a claim against Owens
Illinois. Id. at ¶ 53(b), (c), (g).



Defendants’ failure to obtain adequate settlements
from the Johns-Manville Trust, CSR, Crown Cork & Seal,
and CertainTeed. Id. at ¶ 53(n).



Defendants’ misrepresentation of the strength of Mr.
Frazier’s claim against CertainTeed in order to induce
Plaintiffs’ to settle their claim against CertainTeed.
Id. at ¶ 53(e).



Defendants’
conversion
of
settlement
funds
from
Flintkote, General Electric, Georgia Pacific, and
United States Steel.
Id. at ¶ 53(i), (j), (k), (l),
(m), (o).



Defendants’ failure to obtain Plaintiffs’ permission
to associate other attorneys. Id. at ¶ 53(h).



Defendants’ failure to file Plaintiffs’ wrongful death
claim within the applicable two-year statute of
limitations. Id. at ¶ 53(a).

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Despite the Plaintiffs’ various malpractice allegations, they
assert that each allegation of malpractice caused a single
indivisible injury4, which did not occur until February 2, 2012 the date the Alabama State Court dismissed the wrongful death
claim on statute of limitations grounds.

See Doc. 68 at 4, 12.

The Defendants disagree, arguing that the Plaintiffs’ legal
malpractice action is barred by the applicable statute of
limitations.

See Docs. 12, 25, 66, 67.
Analysis

I.

Conflict of Laws

While the Defendants assert that the Court must engage in a
conflict of laws analysis to determine whether Tennessee or
Alabama law should apply, “[a] district court, sitting in
diversity, must apply the law of the forum state in determining
statute of limitations questions.”

4

Swanson v. Wilson, 423 F.

While the Plaintiffs request this Court to analyze their myriad of
malpractice allegations as if they caused a single indivisible injury, it
must be noted if the Court were to consider the allegations individually, the
allegations concerning inadequate or converted settlements and the
Defendants’ failure to file Mr. Frazier’s claim in Illinois would be barred
by Tenn. Code Ann. § 28–3–104(a)(2).
The Plaintiffs’ claims of inadequate or converted settlements occurred
no later than when Defendant Graham notified the Plaintiffs of the
settlements. See Swett v. Binkley, 104 S.W.3d 64, 67 (Tenn. Ct. App. 2002)
(finding that plaintiff’s cause of action for malpractice against defendant
accrued on the date plaintiff signed the settlement statement).
Additionally, the Plaintiffs’ claim regarding failure to file in Illinois
accrued no later than when the Mississippi Court dismissed Mr. Frazier’s
claim on improper venue grounds. See Cherry v. Williams, 36 S.W.3d 78, 84
(Tenn. Ct. App. 2000) (“[T]he most easily identifiable time when rights,
interests, and liabilities become fixed is when a court enters judgment.”).

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App'x 587, 592 (6th Cir. 2011) (citing Atl. Richfield Co. v.
Monarch Leasing Co., 84 F.3d 204, 205 (6th Cir. 1996)).
Thus, this Court must apply Tennessee law.5
II. Tennessee Statute of Limitations
Regarding the statute of limitations for legal malpractice
actions, the Tennessee Supreme Court has stated the following:
The 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). When the cause of
action accrues is determined by applying 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).
John Kohl & Co. P.C. v. Dearborn & Ewing, 977 S.W.2d 528, 532
(Tenn. 1998).

5
The Defendants further assert that the Tennessee Borrowing Statute,
Tenn. Code Ann. § 28-1-112, should be applied to this case, and this Court
should find that Alabama law applies on that basis. See Doc. 13 at 17-19.
However, as will be established by further analysis, use of the Tennessee
Borrowing Statute is unnecessary because Plaintiffs’ malpractice claim is
barred by the relevant Tennessee statute of limitations.

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“An actual injury occurs when there is the loss of a legal
right, remedy or interest, or the imposition of a liability.”
Id. (citing LaMure v. Peters, 924 P.2d 1379, 1382 (N.M. 1996)).
The Defendants assert that there are four points at which the
Court could find that the Plaintiffs suffered a legally
cognizable injury: (1) January 21, 2006 – when the statute of
limitations expired on Mr. Frazier’s wrongful death claim; (2)
September/October 2009 – when the Plaintiffs terminated the
Defendants’ representation; (3) October 11, 2011 – when the
Plaintiffs’ current attorney, Scott Hendler, sent an email to
Defendant Graham inquiring about the applicability of the
Mississippi Savings Statute; and (4) October 28, 2011 – when an
asbestos defendant filed a motion to dismiss Mr. Frazier’s
wrongful death claim on statute of limitations grounds.

See

Doc. 13 at pp. 22-23; Doc. 67 at pp. 9-12.
While a legal malpractice action can often present a number
of possible dates for accrual of the action6, this Court need not
analyze any dates beyond the September/October 2009 termination
of the Defendants’ representation and Attorney Hendler’s October
11, 2011 email to Defendant Graham.

6

See The Honorable William O. Bertelsman & Elizabeth Favret, “Murky?”
Maybe! A Survey of Cases Interpreting Kentucky’s Professional Malpractice
Statute of Limitations, 38 N. KY. L. REV. 333, 337 (2011).

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a. Termination of Defendants’ Representation
In Riddle v. Carlton, the plaintiff hired the defendant
attorney in February 2005 to represent her in a worker’s
compensation claim.

No. W2011-02145-COA-R3CV, 2012 WL 1948870,

at *1 (Tenn. Ct. App. May 31, 2012).

The plaintiff terminated

the defendant attorney on January 22, 2009 because he failed to
keep the plaintiff informed about the status of her case.

Id.

Thereafter, she filed an ethics complaint against him on March
9, 2009, and it was dismissed on November 9, 2009.

Id.

The plaintiff hired new counsel on March 10, 2010, but she
voluntarily dismissed her worker’s compensation claim on July
23, 2010.

Id.

Subsequently, the plaintiff filed a malpractice

action against the defendant attorney on March 4, 2011.

Id.

The Riddle Court held that the plaintiff’s legal
malpractice claim accrued when she terminated the defendant’s
representation and filed an ethics complaint against him.
at *3.

Id.

Acknowledging that the plaintiff might not have been

aware of her specific malpractice allegations at that time, the
Court stated that, “[S]uch knowledge was not necessary in order
to trigger the statute of limitations.”

Id.

Here, the Plaintiffs terminated the Defendants’
representation in September and October of 2009.
Ex. 1; Doc. 12-2, Ex. A.

See Doc. 12-1,

While the record does not establish

that the Plaintiffs were aware of their specific malpractice

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allegations at that time, “such knowledge [is] not necessary in
order to trigger the statute of limitations.”

Riddle, 2012 WL

1948870 at *3; see also Kohl, 977 S.W.2d at 533 (“[T]here is no
requirement that the plaintiff actually know the specific type
of legal claim he or she has, or that the injury constituted a
breach of the appropriate legal standard.”).7

It is sufficient

that the Plaintiffs were so dissatisfied with the Defendants’
representation that they felt compelled to terminate that
representation and employ different counsel.
Addressing the legal injury component, the Plaintiffs
assert that no legal injury occurred as a result of terminating
the Defendants and obtaining new counsel because new counsel
represented the Plaintiffs on a contingency fee basis in the
underlying asbestos disease action.

See Doc. 68 at pp. 15-18.

However, in Chambers v. Dillow, the Tennessee Supreme Court
found that even though the plaintiff could not ascertain the
full extent of his damages, the fact that the plaintiff had
suffered a delay in the progress of his case, he was liable for
court costs for his dismissed lawsuit, and he had lost the
interest on the use of an anticipated money recovery were
sufficient injuries to trigger the statute of limitations.

713

S.W.2d 896, 898-99 (Tenn. 1986).
7

Interestingly, the Plaintiffs rely heavily on the Kohl decision. See
Doc. 68 at pp. 6-7. While some dicta from the Kohl decision may be construed
to support the Plaintiffs’ position, the holding in Kohl does not.

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Here, the Plaintiffs terminated the Defendants’
representation in September and October of 2009 and attorney
Hendler formally appeared as the Plaintiffs’ counsel in the
asbestos litigation in December 2009.

See Doc. 12-1, Ex. 1;

Doc. 12-2, Ex. A; Doc. 12-5.
Despite the Plaintiffs’ assertions, the injuries and
inconvenience associated with terminating counsel and hiring new
counsel are sufficient to constitute a legally cognizable injury
under Tennessee law.

See Chambers, 713 S.W.2d at 898-99; see

also Kohl, 997 S.W.2d at 533 (finding that plaintiffs suffered a
legally cognizable injury when their accountant had to respond
to IRS inquiry caused by defendant attorney’s advice); Cardiac
Anesthesia Servs., PLLC v. Jones, 385 S.W.3d 530, 544 (Tenn. Ct.
App. 2012), appeal denied (Aug. 16, 2012) (finding that
plaintiffs’ “actual inconvenience” in having to defend the
enforceability of a contract, regardless of whether an actual
expense was incurred, was sufficient to find a legally
cognizable injury).
Thus, the Plaintiffs’ termination of the Defendants in
September and October of 2009 satisfies both the knowledge and
injury components of the discovery rule.

Therefore, the

Plaintiffs’ complaint in this action filed on October 30, 2012
is barred by the one year statute of limitations set forth in
Tenn. Code Ann. § 28–3–104(a)(2).

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b. Attorney Hendler’s Email to Defendant Graham
While the Court has already established that the discovery
rule was triggered when the Plaintiffs terminated the
Defendants’ representation, the Court also recognizes that
Attorney Hendler’s October 11, 2011 letter to Defendant Graham
similarly satisfies the discovery rule.
On October 11, 2011, Hendler sent an email to Defendant
Graham inquiring about the applicability of the Mississippi
Savings Statute in Alabama because the asbestos defendants were
raising the statute of limitations issue.

See Doc. 67-2.

Under Tennessee law, Attorney Hendler’s knowledge of this
issue is imputed to the Plaintiffs.

See Lufkin v. Conner, 338

S.W.3d 499, 504 (Tenn. Ct. App. 2010) (“[A] person generally is
held to know what his attorney knows and should communicate to
him, and the fact that the attorney has not actually
communicated his knowledge to the client is immaterial.”)
(citation and quotation omitted); Lane-Detman, L.L.C. v. Miller
& Martin, 82 S.W.3d 284, 296 (Tenn. Ct. App. 2002) (“The
knowledge of Plaintiffs' counsel is imputed to Plaintiffs under
basic agency theory.”); Smith v. Petkoff, 919 S.W.2d 595, 597
(Tenn. Ct. App. 1995) (“[A] client is implied to have notice of
facts transmitted to his attorney in the matter and course of
his employment for such client.”) (citation and quotation
omitted).

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Thus, by October 11, 2011, the Plaintiffs knew of the
statute of limitations issue created by the Defendants’ alleged
negligence.
Also, the expense and inconvenience associated with
Attorney Hendler researching the applicability of the
Mississippi Savings Statute and drafting a correspondence to
Defendant Graham is sufficient to satisfy the legally cognizable
injury prong of the discovery rule.

See Chambers, 713 S.W.2d at

898-99; see also Kohl, 997 S.W.2d at 533; Cardiac, 385 S.W.3d at
544.
Accordingly, the Plaintiffs’ legal malpractice action
accrued, at the latest, on October 11, 2011 – more than one year
prior to filing the complaint in this action.8

Therefore, having reviewed this matter, and the Court being
otherwise sufficiently advised,

8

While the result in this case would effectively have forced the
Plaintiffs to file their malpractice action against the Defendants while
simultaneously attempting to prosecute their case before the Alabama State
Court, the Tennessee Supreme Court has addressed this problem. See Carvell,
900 S.W.2d at 30. In Carvell, the Tennessee Supreme Court recognized the
difficulty of this position, but it stated that “clients can avoid the
discomfort of maintaining inconsistent positions . . . by filing a
malpractice action against the attorney and requesting that the trial court
stay that action until the underlying proceedings are concluded.” Id.
(citation and internal quotation omitted); see also Nw. Nat’l Ins. Co. v.
Osborne, 610 F. Supp. 126, 129 (E.D. Ky. 1985), aff'd, 787 F.2d 592 (6th Cir.
1986) (“[T]his situation is easily avoided by the client's going to the
allegedly negligent attorney and obtaining a waiver or extension of the
statute of limitations until such time as it may be seen if the underlying
litigation can be favorably concluded.”).

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IT IS ORDERED that:
1. The Defendants’ motions to dismiss, or in the alternative
motions for summary judgment, (Docs. 24, 36) be, and are
hereby, GRANTED;
2. The Plaintiffs’ motions for leave to file supplemental
exhibits (Docs. 53, 60) be, and are hereby, GRANTED;
3. The joint motion to dismiss, or in the alternative for
summary judgment, by Defendants Beasley, Allen, Crow,
Methvin, Portis, & Miles, PLLC; Jackson, Foster, &
Richardson; Sidney Jackson; and Kevin Graham (Doc. 12)
be, and is hereby, DENIED AS MOOT;
4. The Defendants’ motion to stay (Doc. 40) be, and is
hereby, DENIED AS MOOT;
5. A separate judgment shall enter concurrently herewith.
This 19th day of July, 2013.

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