Wesley Cary v. Robert Bourne, M.D.

IN THE COURT OF APPEALS OF TENNESSEE, WESTERN SECTION
AT JACKSON

_______________________________________________________

)
WESLEY CARY, ) Benton County Circuit Court
) No. 3674

VS.
Plaintiff/Appellant. )
)
) C.A. No. 02A01-9511-CV-00263
FILED
) September 23, 1997
ROBERT BOURNE, M.D., et al, )
) Cecil Crowson, Jr.
Defendants/Appellees. ) Appellate C ourt Clerk
______________________________________________________________________________

From the Circuit Court of Benton County at Camden.
Honorable Julian P. Guinn, Judge

Robert G. Gilder, Southaven, Mississippi
L. Anne Jackson, Southaven, Mississippi
Attorneys for Plaintiff/Appellant.

Marty R. Phillips, RAINEY, KIZER, BUTLER, REVIERE & BELL, P.L.C., Jackson, TN
Attorney for Defendants/Appellees Robert Bourne, M.D. and Agustin Vitualla, M.D.
Michael E. Evans, EVANS & TODD, Nashville, Tennessee
Attorney for Defendant/Appellee Medco Drugs, Inc.
Floyd S. Flippin, ADAMS, RYAL & FLIPPIN, Humboldt, Tennessee
Attorney for Defendant/Appellee David Berger, M.D.
C. J. Gideon, Jr.,
John T. Reese,
GIDEON & WISEMAN, Nashville, Tennessee
Attorneys for Defendant/Appellee Jon Winter, D.O.
Rebecca Adelman, GLASSMAN, JETER, EDWARDS & WADE, P.C., Memphis, Tennessee
Attorney for Defendant/Appellee Robert L. Horton, Jr., D.D.S.
David A. Lufkin, LUFKIN & HENLEY, Knoxville, Tennessee
Attorney for Defendant/Appellee Rite Aid of Tennessee, Inc.
Catherine B. Clayton, Jackson, Tennessee
Attorney for Defendant/Appellee Wal-Mart Stores, Inc.
John S. Little, Jackson, Tennessee
Attorney for Defendant/Appellee Fry Drug Company, Inc.
Lela M. Hollabaugh, MANIER, HEROD, HOLLABAUGH & SMITH, Nashville, Tennessee
Attorney for Defendants/Appellees Paul Melton d/b/a Melton’s Pharmacy and Fred’s Stores of
Tennessee, Inc. d/b/a Fred’s
Tom Corts, ORTALE, KELLEY, HERBERT & CRAWFORD, Nashville, Tennessee
Attorney for Defendant/Appellee Herndon Drugs

OPINION FILED:
AFFIRMED AND REMANDED

FARMER, J.

CRAWFORD, P.J., W.S.: (Concurs)
LILLARD, J.: (Concurs)
 This is an appeal from the trial court’s orders dismissing Wesley Cary’s complaint

against various health care providers for their alleged contribution to the breakup of his marriage to

Linda K. Cary. Wesley Cary (hereinafter, “Cary” or “Mr. Cary”) alleged that the marriage had been

irreconcilably broken due to his wife’s prescription drug addiction, which he alleged was a result of

the over prescription of drugs and overfilling of prescriptions by the defendants. We affirm the trial

court’s decision.

FACTS

Wesley Cary and Linda Cary (hereinafter, “Ms. Cary”), were married in 1968, and

resided in Camden, Benton County, Tennessee, throughout their marriage. On May 24, 1994, the

parties separated. Prior to their separation, it is undisputed that the parties had been estranged. As

early as November, 1991, Cary had told Robert Bourne, M.D. that he and Ms. Cary had been having

marital difficulties. The Carys’ problems exacerbated over the years to the point that they took

separate vacations and had separate bank accounts. Ms. Cary filed for divorce in the Chancery Court

of Benton County in September, 1994. In his answer and counter-complaint for divorce, Mr. Cary

stated that Ms. Cary “became addicted to various prescription drugs and prescription medications

for a long period of time prior to the final separation of the parties” and that she had denied him

conjugal rights “for a long period of time prior to the separation.” While the termination of the

marriage is not the subject of the instant proceeding, it is relevant to the issues raised in this cause.

On May 26, 1994, Cary learned from Robert Borne, M.D., that Linda Cary had forged

prescriptions to obtain medications to which she had become addicted. Cary stated in an affidavit

filed in the trial court that he had no knowledge of his wife’s addiction prior to May 26, 1994, and

could not have known of it until that time. Cary further stated that until May 26, 1994, he had

“absolutely no idea that the drastic change in my wife’s behavior and attitude had anything to do

with drugs.” After his meeting with Dr. Bourne, Cary began an investigation into his wife’s

prescription drug addiction. The results of the investigation revealed that Ms. Cary had obtained

many prescriptions from a number of physicians and dentists and had them filled at several

pharmacies.
 On May 3, 1995, Cary filed a complaint for medical malpractice in the Circuit Court

of Benton County. In the complaint, Cary named as defendants: Robert Bourne, M.D., David

Berger, M.D., Jon Winter, D.O., Agustin Vitualla, M.D., Robert L. Horton, Jr., D.D.S., Robert

Walker, D.D.S., Rite-Aid Pharmacy #1402, Wal-Mart Pharmacy, Medco Drugs, Inc., Fry Drug

Company, Paul Melton d/b/a Melton’s Pharmacy, Herndon Drug Company, Pharmaceutical Services,

D and K, Inc., and City Drug Company.1 No summons were filed with the original complaint. In

the complaint, Cary asserted that his marriage had been “irreconcilably broken as a direct and

proximate result of his spouse, Linda Kay Cary’s prescription drug addiction.” Cary’s cause of

action arises solely from the alleged termination of his marriage; however, at no time has Linda K.

Cary been a party to the instant proceeding.

On May 30, 1995, Cary filed an amended complaint but did not allege any additional

causes of action. Cary attached to the amended complaint summons as to all Defendants. Also on

May 30, 1995, the circuit court clerk issued said summons to all defendants except Rite-Aid

Pharmacy. The summons as to Rite-Aid Pharmacy was issued subsequently on July 19, 1995.

The trial court granted summary judgment in favor of the remaining Defendants and

Plaintiff appeals.2 Review of the trial court’s decision on a motion for summary judgment is de

novo. No presumption or correctness attaches to the trial court’s disposition. The Court must review

the evidence in the light most favorable to the nonmoving party and must also draw all reasonable

inferences in the nonmoving party’s favor. Byrd v. Hall, 847 S.W.2d 208, 210-211 (Tenn. 1993).

Courts should grant summary judgment only when both the facts and the conclusions to be drawn

from them permit a reasonable person to reach but one conclusion. Byrd, 847 S.W.2d 208.

ISSUES

On appeal, the parties have raised the following issues:

1
The trial court entered orders of voluntary non-suit as to defendants City Drug
Company, D & K, Inc., Pharmaceutical Services, Inc., and Robert Walker.
2
Medco filed a motion for judgment on the pleadings. Pursuant to Rule 12.03 T.R.C.P.,
“[i]f, on motion for judgment on the pleadings, matters outside the pleadings are presented to and
not excluded by the court, the motion shall be treated as one for summary judgment . . . .”
 I. Does Tennessee recognize a cause of action for termination
of a marriage?

II. Whether the trial court correctly granted summary
judgment on the basis that Plaintiff’s cause of action for loss of
consortium resulting from his wife’s addiction to prescription drugs
was time barred by the one-year statute of limitations codified at
T.C.A. § 29-20-116.

III. Whether the statute of limitations begins to run upon
discovery of the addiction or upon discovery of the cause of action.

Appellee Rite-Aid of Tennessee, Inc., has raised the following issues:

IV. Whether Rite-Aid of Tennessee, Inc., was ever named as
a defendant in either the original or any amended complaint.

V. Whether Plaintiff commenced the action against Rite-Aid
of Tennessee, Inc., within the one year statute of limitations period
after Plaintiff admits that he had full knowledge of his claims against
all defendants.

Appellees Bourne and Vitualla have raised the following issue:

VI. Did the trial court correctly grant summary judgment as
to Drs. Bourne and Vitualla because the undisputed expert testimony
shows that Drs. Bourne and Vitualla met the recognized standard of
acceptable professional practice required of them and did not cause
any injury to Plaintiff?

Appellee Robert L. Horton, D.D.S. has raised the following issue:

VII. Whether Plaintiff’s appeal is frivolous and warrants
imposition of an award of damages.

STANDARD OF CARE

We will address first the issue as presented by Doctors and Vitualla. They assert that

the trial court was correct in its holding because the undisputed expert evidence established that they

had met the recognized standard of acceptable professional practice required of them.
 In medical malpractice actions, there is no presumption of negligence on the part of

the defendant. T.C.A. § 29-26-115(c) (1980) provides in relevant part:

In a malpractice action as described in subsection (a) of this section
there shall be no presumption of negligence on the part of the
defendant.

T.C.A. § 29-26-115(a) sets forth the burden of proof which the plaintiff must establish to maintain

a medical malpractice claim. That section states:

(a) In a malpractice action, the claimant shall have the burden of
proving by evidence as provided in subsection (b):
(1) The recognized standard of acceptable professional
practice in the profession and the specialty thereof, if any, that the
defendant practices in the community in which he practices or in a
similar community at the time the alleged injury or wrongful action
occurred;
(2) That the defendant acted with less than or failed to act
with ordinary and reasonable care in accordance with such standard;
and
(3) As a proximate result of the defendant’s negligent act or
omission, the plaintiff suffered injuries which would not otherwise
have occurred.

As provided by T.C.A. § 29-26-115(d), the burden of proof in a medical malpractice action rests with

the plaintiff.

This Court has held that negligence and causation in medical malpractice actions must

be proved by competent expert medical testimony. Stokes v. Leung, 651 S.W.2d 704, 706 (Tenn.

App. 1982). In fact, T.C.A. § 29-26-115(b) states:

No person in a health care profession requiring licensure under the
laws of this state shall be competent to testify in any court of law to
establish the facts required to be established by subsection (a) unless
he was licensed to practice in the state or a contiguous bordering state
a profession or specialty which would make his expert testimony
relevant to the issues in the case and had practiced this profession or
specialty in one of these states during the year preceding the date that
the alleged injury or wrongful act occurred.

In support of their motions for summary judgment, both Dr. Bourne and Dr. Vitualla
testified by affidavit that they fully complied with the recognized standard of acceptable professional

practice required of them in all of their care and treatment of Ms. Cary. In addition, Dr. Bourne and

Dr. Vitualla each stated in their affidavits that they did not cause or contribute to any injury to either

Mr. Cary or Ms. Cary. A defendant physician may rely upon his affidavit in support of a motion for

summary judgment. Smith v. Graves, 672 S.W.2d 787, 790 (Tenn. App. 1984). In Bowman v.

Henard, 547 S.W.2d 527 (Tenn. 1977), our supreme court held:

In summary we hold that, in those malpractice actions wherein
expert medical testimony is required to establish negligence and
proximate cause, affidavits by medical doctors which clearly and
completely refute plaintiff’s contention afford a proper basis for
dismissal of the action on summary judgment, in the absence of
proper responsive proof by affidavit or otherwise.

Bowman, 547 S.W.2d at 531. In the instant case, Cary presented no evidence to rebut the motion

for summary judgment filed by Drs. Bourne and Vitualla. The Tennessee Supreme Court in Byrd

v. Hall, 847 S.W.2d 208 (Tenn. 1993), held that summary judgment is appropriate in the following

circumstance:

Once it is shown by the moving party that there is no genuine issue
of material fact, the nonmoving party must then demonstrate, by
affidavits or discovery materials, that there is a genuine, material fact
dispute to warrant a trial. . . . In this regard, Rule 56.05 provides that
the nonmoving party cannot simply rely upon his pleadings but must
set forth specific facts showing that there is a genuine issue of
material fact for trial. “If he does not so respond, summary judgment
. . . shall be entered against him.” Rule 56.05.

Byrd, 847 S.W.2d at 211 (emphasis in original).

Cary failed to present any competent expert testimony whatsoever to controvert Dr.

Bourne’s and Dr. Vitualla’s testimony concerning the recognized standard of professional practice

and causation required by T.C.A. § 29-26-115(a). Therefore, we find that the trial court properly

granted summary judgment in favor of Dr. Bourne and Dr. Vitualla, and we affirm the trial court’s

decision in this regard.

STATUTE OF LIMITATIONS
 Since the alleged negligence underlying this cause of action is for medical

malpractice, the applicable statute of limitations is one year. T.C.A. § 29-26-116(a)(1) provides:

“The statute of limitations in malpractice actions shall be one (1) year as set forth in § 28-3-104.”

Cary filed a complaint in this cause on May 3, 1995; however, such action, by itself, is insufficient

to commence a cause of action under Rule 3, Tenn. R. Civ. P. The rule previously provided that

“[a]ll civil actions are commenced by filing a complaint with the Court.” In Hine v. Commercial

Carriers, Inc., 802 S.W.2d 218 (Tenn. 1990), a complaint was filed on March 15, 1989, within the

period prescribed by the statute of limitations. However, a summons was not issued until more than

two months after the statute had expired. In reversing the trial court’s dismissal, the supreme court

noted that Rule 4.01 T.R.C.P. provided that “upon the filing of the complaint the clerk of the court

wherein the complaint is filed shall forthwith issue the required summons . . . .” The court went on

to state that:

First, Rule 3 clearly states that “[a]n action is commenced within the
meaning of any statute of limitations upon such filing of a complaint,
whether process be returned served or unserved.” (emphasis added).
If the drafters of the rule intended a complaint and summons to
commence an action for statute of limitation purposes, the rule could
have easily been drafted to so indicate. As it is, however, Rule 3
speaks in terms of a complaint and the statute of limitations,
regardless of process. It adds no other requirement for commencing
an action. Rule 4.01, dealing with the issuance of a summons, says
nothing about the statute of limitations. It should be noted, however,
that the language in Rule 3 indicative of time constraints speaks to
keeping process in an active mode, but is not instructive on when a
summons must be issued relative to the filing of the complaint.

Hine, 802 S.W.2d at 219-20. The court held that a summons need not necessarily be issued

simultaneously with the filing of a complaint in order for the complaint to toll the statute of

limitations. Rather, the summons must be issued “forthwith,” which the court construed to mean

within a reasonable time after the complaint is filed. The case was remanded to the trial court for

a determination of whether or not the complaint was issued within a reasonable time. However, Rule

3 was subsequently amended and at all times here pertinent states:

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 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 running of a statute of limitations
. . . .3 (Emphasis added.)

While Cary filed the original complaint on May 3, 1995, he did not file at that time a summons as

required by Rule 3. The record reveals that it was not until May 30, 1995, when Cary filed the

amended complaint, that all summons were filed. The trial court clerk issued summons as to all

defendants except Rite-Aid Pharmacy on May 30, 1995. The summons as to Rite-Aid Pharmacy,

while filed with the 5/30/95 amended complaint, was not issued by the trial court clerk until July 19,

1995. It appears to the Court that the action was commenced on May 30, 1995, the date the amended

complaint and summons were filed and the date the summons were issued. Therefore, the action is

barred by the one year statute of limitations applicable to medical malpractice claims.

Appellant asserts that he should not be required to file a lawsuit prior to his

knowledge of his injury. In support of this assertion, Appellant cites Tennessee case law which

holds that the statute of limitations does not start to run until the cause of the injury is discovered or

should have been discovered and the identity of the tort-feasor is known or should have been known.

See McCrosky v. Bryant Air Conditioning Co., 524 S.W.2d 487 (Tenn. 1974); Teeters v. Currey,

518 S.W.2d 512 (Tenn. 1974). However, these cases address situations in which the plaintiffs could

not have discovered the causes of action within adequate time to bring a timely action. Cary relies

upon Gilbert v. Jones, 523 S.W.2d 211 (Tenn. 1974), for the proposition that the discovery rule

should apply to toll the statute of limitations until such time as the defendants are identified.

However, as noted by Webber v. Union Carbide Corp., 653 S.W.2d 409, 412 (Tenn. App. 1983),

There is nothing in Gilbert to suggest, however, that the statute
should have been tolled until the plaintiff could identify as defendants
the manufacturers of specific ingredients or substances contained in
the contraceptives. Once the contraceptives were recognized as the
cause of the illness, the cause of action accrued.

Webber, 653 S.W.2d at 412.

3
Effective July 1, 1997 Rule 3 is amended to delete the words “and summons.” The
advisory commission comment notes that deletion of the requirement of filing a summons in
addition to a complaint returns the requirement for commencement to pre-1992 status.
 The discovery rule codified at T.C.A. § 29-26-116(a)(2) states: “In the event the

alleged injury is not discovered within the said one (1) year period, the period of limitation shall be

one (1) year from the date of such discovery.” As held by our supreme court in Roe v. Jefferson,

875 S.W.2d 653 (Tenn. 1994), the discovery rules applies:

[O]nly in cases where plaintiff does not discover and reasonably
could not be expected to discover that he has a right of action. . . . the
statute is tolled only during the period when the plaintiff has no
knowledge at all that a wrong has occurred, and, as a reasonable
person is not put on inquiry.

Roe, 875 S.W.2d at 656-57 (quoting Hoffman v. Hospital Affiliates, Inc., 652 S.W.2d 341, 344

(Tenn. 1983)). The Roe court noted that a plaintiff need not actually know that the injury constitutes

a breach of the appropriate legal standard in order to discover that he has a right of action. Instead,

the plaintiff is deemed to have discovered the right of action if he is aware of facts sufficient to put

a reasonable person on notice that he has suffered an injury as a result of wrongful conduct. Id. at

657. Furthermore, the supreme court held in Carvell v. Bottoms, 900 S.W.2d 23, 29 (Tenn. 1995),

that a plaintiff need not have the advice of a professional regarding a possible cause of action in

order for the statute of limitations to accrue.

In Roberts v. Berry, 541 F.2d 602 (6th Cir. 1976), the Sixth Circuit, applying

Tennessee law to a loss of consortium claim, held that the statute of limitations begins to run when

the consortium is lost and not when the tortious conduct is discovered. Roberts, 541 F.2d at 610.

The Supreme Court noted that loss of consortium is a gradual injury and the statute of limitations

begins to run when the husband knows or should have known of the errant conduct by his wife.

Broidioi v. Hall, 218 S.W.2d 737, 738 (Tenn 1949). In the instant case, it is not known when the

consortium was lost, but it is clear it was sometime before May 26, 1994.

Examination of the record filed in this Court leads to the conclusion that Appellant

knew of the existence of a cause of action no later than May 26, 1994. The amended complaint filed

May 30, 1995, stated that Cary “learned of these acts of malpractice in the latter part of May, 1994.”

In a subsequent affidavit filed August 30, 1995, Cary stated that he discovered the alleged

malpractice on May 26, 1994, when he met with Dr. Bourne. After that meeting, Cary began an
investigation into Mrs. Cary’s prescription records. In the separate divorce proceeding, Cary filed

a counterclaim on September 30, 1994, in which he stated under oath that the Carys’ final separation

occurred on May 24, 1994. In that pleading, Cary stated that Ms. Cary had denied him his conjugal

rights “for a long period of time prior to the final separation.” Furthermore, it is evident from Dr.

Bourne’s affidavit filed August 23, 1995, that the Carys had been having marital difficulties before

May 24, 1994. Mr. Cary had informed Bourne of the situation as early as November, 1991, and

Bourne was aware that the Cary’s had taken separate vacations and maintained separate checking

accounts prior to their separation.

On October 16, 1995, Cary filed a supplemental affidavit in which he stated that he

knew about his wife’ drug addiction by May 26, 1994, when Dr. Bourne met with Cary and showed

him the prescriptions that Ms. Cary had altered, but Cary stated he did not know about the doctors’

and pharmacies’ alleged malpractice until June 20, 1994, when he had completed his investigation

into his wife’s prescription records. It is undeniable that Cary had stated in previous affidavits and

pleadings that he knew about the alleged malpractice as of May 26, 1994. Therefore, the Court

questions the probative value of Cary’s inconsistent statements. See Price v. Becker, 812 S.W.2d

597, 598 (Tenn. App. 1991) (two sworn inconsistent statements by a party are of no probative value

in establishing a disputed issue of material fact). In spite of these inconsistencies, the evidence

contained in the record before this Court points to May 26, 1994, as the date on which the statute of

limitations began to run.

On May 26, 1994, Cary knew that he and his wife had separated two days earlier on

May 24, and he admitted that they had not had conjugal relations for a long period of time before the

separation. He knew from the meeting with Dr. Bourne that Ms. Cary was addicted to drugs as

evidenced by the fact that she had altered prescriptions in order to obtain them. Furthermore, Cary

had admitted that the couple had been having extreme difficulties as early as November, 1991, that

they took separate vacations and maintained separate checking accounts. Cary even stated in a

pleading filed in this cause that he knew about the alleged wrongful acts of the defendants by May

26, 1994, and it is undisputed that as a result of the May 26, 1994, meeting between Dr. Bourne and

Mr. Cary that Cary immediately began an investigation into his wife’s prescription records.
 Contrary to the argument advanced in Cary’s brief, we do not find that by adopting

the appellees’ position regarding the accrual of the statute of limitations period, that Cary would have

been required to file suit on May 26, 1994. Nonetheless, we conclude that the one year statute of

limitations provided by T.C.A. § 29-26-116(a)(1) (1996) began to run on May 26, 1994. As our

supreme court stated in Roe v. Jefferson, 875 S.W.2d 653 (Tenn. 1994):

It is not required that the plaintiff actually know that the injury
constitutes a breach of the appropriate legal standard in order to
discover that he has a “right of action”; the plaintiff is deemed to have
discovered the right of action if he is aware of facts sufficient to put
a reasonable person on notice that he has suffered an injury as a result
of wrongful conduct.

Roe, 875 S.W.2d at 657.

It is evident that the cause of action accrued on or before May 26, 1994, and the

statute of limitations expired on May 26, 1995. Cary admitted that he knew of his wife’s alleged

drug addiction by May 26, 1994, and that he and his wife had been separated on May 24, 1994. Cary

was on inquiry notice on or before May 26, 1994, and his failure to properly commence a lawsuit

within one year of that date bars the instant action. Therefore, we affirm the trial court’s dismissal

of the cause on the basis that the statute of limitations had expired before Cary commenced the

proceedings on May 30, 1995, when he filed the summons and amended complaint.

TERMINATION OF MARRIAGE

Cary alleges that the defendants caused his wife to become addicted to prescription

drugs, which in turn led to the termination of the marriage. Linda Cary is not a party to the instant

proceeding. Instead, Cary’s claims arise solely from the termination of his marriage.

Tennessee does not recognize a cause of action for termination of a marriage.

Formerly, Tennessee recognized two causes of action related to interference with the marital

relationship: (1) criminal conversation and (2) alienation of affections. Lentz v. Baker, 792 S.W.2d

71, 73 (Tenn. App. 1989). All causes of action for termination of a marriage have been abolished
in Tennessee.

In 1989, the Tennessee General Assembly abolished the tort of alienation of

affections. Specifically, T.C.A. § 36-3-701 (1996) states: “The common law tort action of alienation

of affections is hereby abolished.” Alienation of affections has been defined as “willful and

malicious interference with the marriage relation by a third party, without justification or excuse.”

Dupuis v. Hand, 814 S.W.2d 340, 343 (Tenn. 1991) (quoting Donnell v. Donnell, 415 S.W.2d 127,

132 (Tenn. 1967)). The Tennessee Supreme Court in Dupuis abolished the common law tort for

alienation of affections. Id. at 346.

Similarly, the Tennessee General Assembly and Supreme Court also have abolished

the tort of criminal conversation. In 1990, the general assembly enacted T.C.A. § 39-13-508(a)

(1991) which states in relevant part: “On or after January 1, 1991, no cause of action shall be

maintained that is based upon the common law torts of seduction or criminal conversation, and such

torts are hereby abolished.” In Hanover v. Ruch, 809 S.W.2d 893 (Tenn. 1991), the supreme court

abolished the common law tort of criminal conversation. Hanover, 809 S.W.2d at 898.

In his complaint, Cary alleged the following:

The actions and conduct of herein listed Defendants constituted a
negligent, gross, wilful, wanton and total disregard for Linda Kay
Cary’s health and welfare. As a direct and proximate result of the
actions of the Defendants, Wesley Cary’s marriage has become
irreconcilably broken. Until the drug addiction, Plaintiff, Wesley
Cary, and Linda Kay Cary had had a completely normal, productive,
harmonious relationship as husband and wife, and but for this breach
of the acceptable standards of professional care, would have been able
to continue these relationships.

Examination of Cary’s complaint reveals that it is based on the tort of alienation of

affections. Tennessee does not recognize this cause of action for interference with a marriage,

regardless of whether the interference is intentional or negligent. Accordingly, Cary has failed to

state a claim upon which relief may be granted.

Cary asserts that his claim constitutes loss of consortium with his wife. Regardless
of the name appended to the claim, it is still a claim for alienation of affections. The supreme court

noted in Dupuis, “[t]he gist of the alienation of affections tort is the loss of consortium . . . .”

Dupuis, 814 S.W.2d at 343 (quoting Kelley v. Jones, 675 S.W.2d 189, 190 (Tenn. App. 1984)).

Recently, the Tennessee Supreme Court addressed the comparative fault aspects of a claim for loss

of consortium in Tuggle v. Allright Parking Systems, Inc., 922 S.W.2d 105 (Tenn. 1996). In that

case, the court noted that, while the claim for loss of consortium is a claim independent from that

of the injured spouse for other damages, it is also a derivative claim in that the physical injuries or

incapacities of one’s spouse give rise to and establish the claim. Tuggle, 922 S.W.2d at 108, see

also, Jackson v. Miller, 776 S.W.2d 115, 117 (Tenn. App. 1979); Swafford v. City of Chattanooga,

743 S.W.2d 174, 178 (Tenn. App. 1987).

In Tuggle, the supreme court held that Tennessee was not one of the minority of

jurisdictions that recognize a different and independent cause of action for loss of consortium. The

court held:

In contrast to the Tennessee approach, a small number of
jurisdictions view a claim for loss of consortium as an essentially
different and independent cause of action from the physically injured
spouse.

Tuggle, 922 S.W.2d at 108. (Emphasis added.) The supreme court further held that, in states such

as Tennessee which follow the majority approach, a claim for loss of consortium is regarded as

derivative of the principal claim for injuries. Relying on the Hawaii Supreme Court’s decision in

Mist v. Westin Hotels, Inc., 738 P.2d 85, 90, (Haw. 1987), the Tennessee Supreme Court stated:

[T]here must be a tort which gives rise to a cause of action that must
be maintained by the [physically] injured spouse in order for the non-
injured spouse to claim a loss of consortium. In other words, the loss
of consortium claim is dependent upon the negligent injury of the
other spouse who has the primary tort cause of action.

Id. at 109.

Other jurisdictions which have addressed this situation have declined to permit a party
to circumvent an abolished tort by artful drafting. In Koestler v. Polland, 471 N.W.2d 7 (Wis.

1991), the plaintiff filed a suit for intentional infliction of emotional distress arising from the

defendant’s adulterous affair with and impregnation of the plaintiff’s wife. Under Wisconsin law,

a cause of action for intentional infliction of emotional distress is an independently viable claim for

which recovery may be had. However, in addressing the case, the Wisconsin Supreme Court

observed that plaintiff’s claim was really one for criminal conversation which had been abolished.

Koestler, 471 N.W.2d at 9. Therefore, the court did not permit the defendant to recover for an

otherwise viable claim because to do so would undermine the state statute abolishing criminal

conversation. Id. at 10. Similarly, in Schieffer v. Catholic Archdiocese of Omaha, 508 N.W.2d

907 (Neb. 1993), the Nebraska Supreme Court affirmed the dismissal of a loss of consortium claim

because it was essentially a claim for criminal conversation and alienation of affections. Those torts

had been abolished by state statute; therefore, a cause of action did not exist. Schieffer, 508 N.W.2d

at 912. See also, Speer v. Dealy, 495 N.W.2d 911, 913 (Neb. 1993).

In the instant proceeding, Cary cannot label as loss of consortium what is really a

claim for alienation of affections because that tort has been abolished in Tennessee by both the

general assembly and the supreme court. Cary has failed to state a cause of action upon which relief

may be granted.

As noted, Tuggle cited the holding in Mist. We have not addressed the question of

whether the injured spouse must maintain their cause of action in order for the non-injured spouse

to claim a loss of consortium as that issue is not before us.

CLAIMS AGAINST RITE-AID

Rite-Aid of Tennessee, Inc. asserts that it was never properly named as a party to this

action. The complaint names Rite-Aid Pharmacy #1402 as a defendant, but that entity was not

served with process. Instead, the registered agent for Rite-Aid of Tennessee, Inc., the correct

corporate party, was served with process on August 1, 1995. Simply stated, the named defendant,

Rite-Aid Pharmacy #1402, was never served in this matter, and the correct corporate party, Rite-Aid
of Tennessee, Inc., was served but never named as a party in either the original or amended

complaints. Therefore, no action was commenced against Rite-Aid of Tennessee, Inc.

Even if the Court were to ignore the procedural irregularities as to the named

defendant, it is apparent from the foregoing analysis that the cause of action was not commenced

timely as to any defendants, including Rite-Aid. Rite-Aid asserts that its summons was not filed

until July 19, 1995, which was also the date it was issued by the trial court clerk. That proposition

is not supported by the record on appeal, and Rite-Aid does not offer any contrary proof. While it

is undeniable that the trial court clerk issued the summons as to Rite-Aid on July 19, 1995, the record

on appeal indicates that all summons, including Rite-Aid’s, were filed with the amended complaint

on May 30, 1995. Nonetheless, regardless of whether the Rite-Aid summons was filed on May 30

or July 19, the cause of action was not commenced timely as to Rite-Aid or to any other defendant.

For the foregoing reasons, we find that in spite of the procedural irregularities concerning the proper

named party, the cause of action as to Rite-Aid was not timely commenced within one year of the

accrual of the cause of action. Accordingly, said claim is time-barred by the statute of limitations.

The trial court’s May 2, 1996, order granting summary judgment in favor of Rite-Aid is affirmed.

FRIVOLOUS APPEAL

In his brief, Robert L. Horton, D.D.S., requested imposition of damages against Cary

on the basis that the appeal is frivolous. After due consideration of this issue, the Court finds that

the issue is not well-taken, and the Court declines to award said damages.

CONCLUSION

For the foregoing reasons, the Court is of the opinion that the orders of the trial court

dismissing Mr. Cary’s claims against the defendants should be and are affirmed. Costs are taxed to

the plaintiff, Wesley Cary, for which execution may issue if necessary.

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FARMER, J.
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CRAWFORD, P.J., W.S. (Concurs)

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LILLARD, J. (Concurs)