IN THE COURT OF APPEALS OF TENNESSEE
FILED
RICHARD C. CANADA and wife ) December 29, 1997
C/A NO. 03A01-9606-CV-00182
SHARON CANADA, )
) Cecil Crowson, Jr.
Plaintiffs-Appellants, ) Appellate C ourt Clerk
)
)
)
v. )
)
)
) APPEAL AS OF RIGHT FROM THE
ACE CODENT, ZAHN DENTAL COMPANY, ) BRADLEY COUNTY CIRCUIT COURT
INC., and HENRY SCHEIN, INC., )
)
Defendants, )
)
)
and )
)
)
ACECODENT INCORPORATED, )
) HONORABLE EARLE G. MURPHY,
Defendant-Appellee. ) JUDGE
For Appellants For Appellee
JIMMY W. BILBO DAVID F. HENSLEY
Logan, Thompson, Miller, Bilbo, Milligan, Barry, Hensley
Thompson & Fisher, P.C. & Evans
Cleveland, Tennessee Chattanooga, Tennessee
OPINION
REVERSED AND REMANDED Susano, J.
1
By order entered December 15, 1997, the Supreme Court
remanded this case to us for further consideration in light of
its opinion in Grantham v. Jackson-Madison County General
Hospital District, 954 S.W.2d 36 (Tenn. 1997).
In Grantham, the plaintiffs filed suit on February 18,
1994, against a defendant identified in the original complaint as
Jackson-Madison County General Hospital. On February 24, 1994,
four days after the statute of limitations had expired on the
plaintiffs’ tort claims, the complaint was served on the agent
for service of process for Jackson-Madison County General
Hospital District. The hospital filed a motion to dismiss,
arguing that the plaintiffs had omitted the word “District” from
the hospital’s name and that Jackson-Madison County General
Hospital was not a legal entity. The trial court allowed an
amendment to the complaint to reflect the hospital’s correct
name; but the Court of Appeals reversed, finding that the
plaintiffs were attempting to add a new party after the period of
limitations had expired. In so ruling, the Court of Appeals
“held that the amendment did not relate back to the filing of the
original complaint because the defendant was served after the
expiration of time for commencement of action.” Id. at 37.
The Supreme Court reversed the Court of Appeals and
affirmed the trial court. In the course of its opinion, the
Supreme Court stated as follows:
We believe that the plaintiffs did not select
the wrong defendant but simply mislabeled the
right defendant. Plaintiffs properly
2
identified the defendant in several respects.
They referred to the defendant as a health
care facility doing business in Madison
County, Tennessee. They served the complaint
on the defendant’s proper agent for service
of process at defendant’s place of business.
They also approximated the defendant’s name
in the caption of the complaint as “Jackson-
Madison County General Hospital.” The
defendant’s correct name is “Jackson-Madison
County General Hospital District.” Every
word in the plaintiffs’ designation appears
in the correct designation. The sole
difference is that the plaintiffs omitted the
word “District.”
* * *
...the plaintiffs in the present case are not
attempting to add the name of an individual
or another business. They are merely
attempting to correct the mislabeling of the
party they intended to sue. We find that the
approximation in the original complaint was
sufficiently close to prevent prejudice by
apprising the defendant it was being sued.
The amended complaint’s claim “arose out of
the same conduct, transaction or occurrence
set forth...in the original [complaint].”
Tenn.R.Civ.P., Rule 15.03. The requirements
of Rule 15.03 have been satisfied, and the
plaintiffs should be allowed to amend their
complaint.
Id. at 37-38.
In the instant case, the caption of the original
complaint identified the relevant defendant as follows:
ACE CODENT, a New York corporation
whose registered agent for service
of process is Kyung-Jin Koh,
4370 Kissena Blvd., Flushing,
New York, 11355
That complaint was filed on May 19, 1995. It sought damages
arising out of personal injuries sustained by the plaintiff
3
Richard C. Canada in an accident on May 21, 1994. It alleged
that the damages were proximately caused by a defective product
manufactured by Ace Codent.
As in the Grantham case, the complaint in the instant
case was served on an agent for the correct party, Acecodent
Incorporated, after the one-year statute of limitations had
expired. As in Grantham, the defendant Acecodent Incorporated
argues that the plaintiffs in the instant case attempted to name
a new party after the one-year statute of limitations had run,
and that the amendment did not relate back to the original filing
under the language of the then-existing version of Rule 15.03,
Tenn.R.Civ.P.1
The instant case is controlled by Grantham. The
plaintiffs in the case at bar approximated the defendant’s
correct name in the original complaint. The words “Ace Codent”
appear -- albeit as one word -- in the correct designation as set
forth in the amended complaint. An agent for the correct
1
Rule 15.03, Tenn.R.Civ.P., as applicable to this case, provided as
follows:
Whenever the claim or defense asserted in the amended
pleadings arose out of the conduct, transaction or
occurrence set forth or attempted to be set forth in
the original pleading, the amendment relates back to
the date of the original pleading. An amendment
changing the party against whom a claim is asserted
relates back if the foregoing provision is satisfied
and if, within the period provided by law for
commencing the action against him, the party to be
brought in by amendment (1) has received such notice
of the institution of the action that he will not be
prejudiced in maintaining his defense on the merits,
and (2) knew or should have known that, but for a
misnomer or other similar mistake concerning the
identity of the proper party, the action would have
been brought against him. Except as above specified,
nothing in this rule shall be construed to extend any
period of limitations governing the time in which any
action may be brought.
4
defendant was served with process. As the Supreme Court said in
Grantham, “the approximation in the original complaint was
sufficiently close to prevent prejudice by apprising the
defendant it was being sued.” Id. at 38. Following Grantham, we
hold that the amended complaint in this case relates back to the
filing of the original complaint and thus is not subject to the
bar of the one-year statute of limitations. Accordingly, our
holding to the contrary was error as was the trial court’s grant
of summary judgment based upon the bar of the statute of
limitations.
Our judgment of June 9, 1997, is hereby vacated and
held for naught. Furthermore, the judgment of the trial court is
reversed. This case is remanded for further proceedings,
consistent with this opinion. All costs on appeal are taxed
against the appellee, Acecodent Incorporated.
_____________________________
Charles D. Susano, Jr., J.
CONCUR:
________________________
Houston M. Goddard, P.J.
________________________
Don T. McMurray, J.
5