IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
FILED
June 26, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
TERESA MELTON MOORE, ) WASHINGTON CIRCUIT
)
Plaintiff/Appellant ) NO. 03A01-9802-CV-00063
)
v. ) HON. THOMAS J. SEELY, JR.
) JUDGE
CHRISTA MILLION FEATHERS )
and TRACY FEATHERS, )
) REVERSED and
Defendants/Appellees ) REMANDED
Gary E. Brewer and Leslie A. Muse, Morristown, for Appellant
Robert D. Arnold, Johnson City, for Appellees.
OPINION
INMAN, Senior Judge
Plaintiff/Appellant [“Moore”] brought this action for personal injuries
resulting from an automobile accident which occurred on June 6, 1991. The
trial court dismissed the claim as barred by the statute of limitations.
We reverse the judgment for the reasons hereafter stated.
Moore filed her first complaint in this cause [Docket # 14782] on March
13, 1992. An Order of voluntary nonsuit was entered on November 9, 1993.
She filed a second complaint [Docket # 16394] on June 22, 1994.
Process issued for defendant Christa Feathers was returned marked “Moved, No
Longer this Address, Out of State.” Process for defendant Tracy Feathers was
returned marked “Not At This Address, Unable to Locate.”
Moore filed a third complaint, also docketed # 16394, on June 20, 1995,
and summons were served on June 28, 1995. Defendants answered and raised
the affirmative defense that the statute of limitations barred the claim.
On October 31,1996 defendants filed a motion for summary judgment,
which was argued on November 10, 1997. The trial court sustained the motion
and dismissed Moore’s third complaint as time-barred.
Moore insists that the trial court erred
“ . . . in dismissing this action as time barred where Complaint #
16394 was filed on 6/22/94, where the Summonses issued therewith
were returned unserved on 6/27/94, and where the Plaintiff refiled a
Complaint and two Summonses on 6/20/95, thereby ‘recommencing’
the action within one year of the filing of the original Complaint as
mandated by Rule 3 of the then applicable Tennessee Rules of Civil
Procedure.”
Our review of the findings of fact made by the trial Court is de novo upon
the record of the trial Court, accompanied by a presumption of the correctness
of the finding, unless the preponderance of the evidence is otherwise. TENN. R.
APP. P., RULE 13(d).. R. APP. P., RULE 13(d); Campbell v. Florida Steel Corp.,
919 S.W.2d 26 (Tenn. 1996). But where there is no conflict in the evidence as
to any material fact, as in this case, the question on appeal is one of law, and the
scope of review is de novo with no presumption of correctness accompanying a
chancellor's conclusions of law. Union Carbide Corp. v. Huddleston, 854
S.W.2d 87 (Tenn. 1993).
Upon entry of the order of nonsuit of Moore’s first complaint, the saving
statute, Tenn. Code Ann. § 28-1-105, took effect. This statute provided the
opportunity for Moore to commence a new action within one year.
2
On June 22, 1994, within that one year, Moore filed her second
complaint, but process was not served on the defendants. Upon the return of
process unserved, R ULE 3, T. R. C. P. took effect, which provided, at all times
relevant:1
RULE 3. COMMENCEMENT OF ACTION
All civil actions are commenced by filing a complaint
and summons with the clerk of the court. An action is
commenced within the meaning of any statute of
limitations upon such filing of a complaint and
summons, whether process be issued or not issued and
whether process be returned served or unserved. If
process remains unissued for 30 days or if process is not
served or is not returned within 30 days from issuance,
regardless of the reason, the plaintiff cannot rely upon
the original commencement to toll the statute of
limitations unless the plaintiff either:
(1) continues the action by obtaining issuance of new
process within 6 months from issuance of the previous
process or, if no process issued, within 6 months from
the filing of the complaint and summons, or
(2) recommences the action within 1 year from the
issuance of the original process or, if no process issued,
within 1 year from the filing on the original complaint
and summons.
Moore filed her third complaint on June 20, 1995, and process was served
on the defendants on June 27, 1995.
It is undisputed that Moore failed to meet the statutory time limitations of
RULE 3(1), since she did not issue new process on her second complaint within
six months of the return of the unserved process. Therefore, her third complaint,
filed with the clerk on June 20, 1995, is only viable if it satisfied the time
1
Rule 3 was amended effective July 1, 1995. The Advisory Commission Comment to
the 1995 Amendment states: “Because the former rule created confusion between the one-year
recommencement period and the one-year saving statute, the recommencement provision is
eliminated. The earlier six month reissuance period is extended from six months to a full
year.” However, this amended version is not subject to retroactive application. Gregory v.
McCulley, 912 S.W.2d 175 (Tenn. App. 1995).
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limitations of the then-applicable Rule 3(2), i.e., if it “recommence[d] the action
within one year of the filing of the original process or, if no process issued,
within 1 year from the filing on the original complaint and summons.”
Defendants contend that Moore “could have filed a new action and
preserved her cause of action. This she did not do and her cause of action
therefore expired on November 9, 1994.” 2
Moore insists that she “complied with the rule in effect at the time by
refiling the complaint and summons on June 20, 1995, less than one year after
the June 22, 1994 complaint was file, thus recommencing the action as
required.”
A plaintiff may timely recommence an action by “filing a new
complaint,” Little v. Franceshini, 688 S.W.2d 91 (Tenn. App. 1985); “refiling
the complaint,” Dukes v. Noe, 856 S.W.2d 403 (Tenn. App. 1993), or “refiling
an original complaint,” Fox v. Smith, Tenn. Ct. App., W. S., Tomlin, J., June
19, 1984. In interpreting the meaning of “recommence,” the Sixth Circuit has
interpreted our Rule 3, T.R.C.P., in this regard to mean that inasmuch as the
commencement of an action is begun by the filing of a complaint, the
recommencement of an action likewise means the filing of a complaint. Lee v.
Crenshaw, 562 F.2d 380, 381-2 (6th Cir. 1977). The fact that the docket
numbers on Moore’s second and third complaints are the same is not
significant; the requirement of filing a new complaint within one year of the
issuance of process on the complaint filed on June 22, 1994 was satisfied.
The judgment of the trial court is reversed and the case is remanded for
2
One year after the nonsuit of the first Complaint.
4
proceedings not inconsistent with this opinion. Costs are assessed to the
appellee.
_______________________________
William H. Inman, Senior Judge
CONCUR:
______________________________
Herschel P. Franks, Judge
_______________________________
Charles D. Susano, Jr., Judge
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