Canada v. Ace

IN THE COURT OF APPEALS OF TENNESSEE

RICHARD C. CANADA and wife ) C/A NO. 03A01-9606-CV-00182
SHARON CANADA, ) BRADLEY COUNTY CIRCUIT COURT
)
Plaintiffs-Appellants, )
)
)

v.
)
)
FILED
)
) September 23, 1996
)
ACE CODENT, ZAHN DENTAL COMPANY, ) Cecil Crowson, Jr.
INC., and HENRY SCHEIN, INC., ) Appellate C ourt Clerk
)
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

APPEAL DISMISSED
REMANDED Susano, J.

1
 This products liability action was dismissed by the

trial court on motion of Acecodent Incorporated.1 The plaintiffs

appeal, presenting one narrow issue that raises the following

question:

Did the trial court err when it found that
Rule 15.03, Tenn. R. Civ. P., as amended
effective July 1, 1995, could not be given
retrospective application to insulate the
plaintiffs’ causes of action from Acecodent
Incorporated’s defense of the statute of
limitations?

Also before us is the motion of Acecodent Incorporated to dismiss

this appeal. That motion is predicated on the failure of the

appellants to serve a copy of their notice of appeal on the clerk

of this court as required by Rule 5(a), T.R.A.P. We will first

consider the motion to dismiss the appeal.

I

The appellants timely filed a notice of appeal with the

clerk of the trial court. They also timely served a copy of the

notice on the appellee, Acecodent Incorporated; however, they

failed to serve a copy of the notice on the clerk of this court

as required by Rule 5(a), T.R.A.P., which provides, in pertinent

part, as follows:

Not later than 7 days after filing notice of
appeal, the appellant in a civil action shall
serve a copy of the notice of appeal . . . on

1
The final judgment in this case as to Ace Codent and Acecodent
Incorporated was entered pursuant to Rule 54.02, Tenn. R. Civ. P. The case is
apparently proceeding at the trial level as to the other defendants.

2
 the clerk of the appellate court designated
in the notice of appeal.

It is clear that an appellate court has the authority

to suspend Rule 5(a) as it pertains to the requirement that an

appellant serve a copy of the notice of appeal on the clerk of

the appellate court. That authority is found in Rule 2,

T.R.A.P.:

For good cause, including the interest of
expediting decision upon any matter, the
Supreme Court, Court of Appeals, or Court of
Criminal Appeals may suspend the requirements
or provisions of any of these rules in a
particular case on motion of a party or on
its motion and may order proceedings in
accordance with its discretion, except that
this rule shall not permit the extension of
time for filing a notice of appeal prescribed
in rule 4, an application for permission to
appeal prescribed in rule 11, or a petition
for review prescribed in rule 12.

See also G. F. Plunk Const. Co., Inc. v. Barrett Properties,

Inc., 640 S.W.2d 215, 216 (Tenn. 1982); but it is abundantly

clear that a precondition to a waiver under Rule 2 is a showing

of “good cause.” Id. at 217.

In the G. F. Plunk case, the appellant failed to serve

a copy of its notice of appeal on the clerk of the Court of

Appeals. It also failed to serve a copy on opposing counsel.

The operative facts before the court in G. F. Plunk were stated

by the Supreme Court as follows:

It is undisputed that neither opposing
counsel nor the clerk of the Court of Appeals

3
 received a copy of appellant’s notice of
appeal. Counsel for appellant candidly
admits that neither he nor his secretary has
an independent recollection of having mailed
a copy of the notice of appeal to opposing
counsel and the clerk of the Court of
Appeals, but nevertheless believes that it
was done.

Id. at 216. While recognizing that an appellate court has the

authority under Rule 2, T.R.A.P., to waive the requirements of

service of the notice of appeal on opposing counsel and on the

clerk of the appellate court, the Supreme Court in G. F. Plunk

refused to do so and consequently affirmed the judgment of the

Court of Appeals dismissing the appeal. In so holding, the

Supreme Court opined that a “mere good faith belief that a

routine office chore has been timely performed” was insufficient

to show “good cause.” Id. at 218.

In the instant case, the appellants have totally failed

to present to us any “cause,” good, bad or otherwise, for their

failure to serve a copy of their notice of appeal on the clerk of

this court. In the absence of a showing of good cause, we do not

believe that we can or should invoke the provisions of Rule 2, to

absolve appellants of their obligation to fully comply with Rule

5(a), T.R.A.P.

The facts of the instant case are substantially the

same as those presented to us in the recent unreported case of

Cobb v. Beier, C/A No. 03A01-9602-CV-00051 (Tenn. App. July 3,

1996, at Knoxville, Franks, J.) We adhere to our decision in

Cobb; but would note, in passing, that the losing party in that

4
case filed an application for permission to appeal with the

Supreme Court on August 6, 1996. That application is still

pending.

We find that the appellee’s motion to dismiss the

appeal is well taken and accordingly dismiss this appeal.

II

We recognize that there may be further appellate review

in this case. This prompts us to examine the substantive issue

advanced by the appellants. Since the trial court ultimately

considered all of the affidavits filed by the parties, we will

treat the action of the trial court as one for summary judgment.

See Rule 12.02, Tenn. R. Civ. P. We are obliged to affirm the

trial court’s grant of summary judgment “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Rule 56.03, Tenn.

R. Civ. P.

The original complaint in this case was filed on May

19, 1995. In it, the plaintiffs, now appellants, alleged that

the plaintiff Richard C. Canada2 suffered personal injuries on

May 21, 1994, as a result of a defective product manufactured and

distributed by a number of defendants, one of whom is identified

2
The plaintiff Sharon Canada is the wife of Richard C. Canada; her claim
is for loss of consortium.

5
in the original complaint as “Ace Codent.” Unbeknownst to the

plaintiffs at that time, the full legal name of the entity sought

to be sued in this case is Acecodent Incorporated.

On July 26, 1995, outside the applicable period of

limitations,3 the summons and a copy of the original complaint

were received at the corporate offices of Acecodent Incorporated.

On September 1, 1995, a motion to dismiss was filed

below, asserting that “Ace Codent” was a “non-entity” who “does

not legally exist and does not have the capacity to be sued.” In

apparent response to this motion, the plaintiffs, on September

13, 1995, filed an amended complaint to “correct[] the name of

the defendant, Ace Codent to Acecodent Incorporated.”

Thereafter, Acecodent Incorporated filed a motion to dismiss

based on the statute of limitations. It is supported in the

record by the affidavit of Jin Hwang, one of the owners of

Acecodent Incorporated. In her affidavit, Ms. Hwang asserts that

prior to July 26, 1995, the company “had no knowledge of . . .

the filing of a lawsuit by Richard and Sharon Canada.”

The plaintiffs attempted to controvert the Hwang

affidavit by filing the affidavit of their counsel, Jimmy W.

Bilbo. Mr. Bilbo’s affidavit recites that he spoke by telephone

with a woman at the offices of Acecodent Incorporated on May 18,

1995, within the one-year limitations period. He states that he

called to get the company’s name and address. His affidavit

continues:

3
T.C.A. § 28-3-104.

6
 When I verified the name of the defendant
over the telephone to the representative at
the defendant office in Flushing, New York, I
spelled out the name Ace Codent as two words.
The representative/ agent of the defendant
verified that I had the name correct. For
that reason, the action was filed against Ace
Codent instead of Acecodent Incorporated.

Mr. Bilbo says that the person to whom he spoke asked him why he

needed to verify the name and address, and he “told her [he] was

filing a lawsuit against the company.”

The appellants concede in their brief that “[t]he

amended complaint was filed and served after the statute of

limitations had run on plaintiffs’ claim.” They argue, however,

that Rule 15.03, Tenn. R. Civ. P., as amended effective July 1,

1995, applies to their amended complaint (filed September 13,

1995) so that the filing of the amended complaint relates back to

the date of filing of the original complaint, thus saving their

claim against Acecodent Incorporated.

It is clear, and the appellants seem to concede, that

the wording of Rule 15.03 prior to July 1, 1995, precludes a

finding in this case that the amended complaint was timely filed.

That version of the Rule provided, in pertinent part, as follows:

An amendment changing the party against whom
a claim is asserted relates back . . . 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

7
 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.

(Emphasis added). This version of the Rule was addressed in the

Supreme Court case of Duke v. Replogle Enterprises, 891 S.W.2d

205 (Tenn. 1994). In Duke, a workers’ compensation action was

filed against “Replogle Enterprises, a/k/a Replogle Sawmill.” In

fact, the actual employer was Nathan Replogle, a sole proprietor,

doing business as Replogle Enterprises, Replogle Sawmill. The

original complaint was served on Nathan Replogle on February 4,

1992, the third day following the expiration of the one-year

statute of limitations. On March 10, 1992, the plaintiff filed a

motion to amend “to include the name of Nathan Replogle as a

defendant.” Id. The plaintiff there argued that the amended

complaint related back to the date of filing of the original

complaint. Despite the striking similarity in names, the Supreme

Court held that the suit against Mr. Replogle was time-barred.

In affirming the trial court’s dismissal of the plaintiff’s cause

of action, the Supreme Court pointed out that

[a]s Rule 15.03 now stands, had the service
of process on Nathan Replogle been served
before the expiration of statutory
limitations, the plaintiff’s amendment to add
the proper party-defendant would have related
back to the date of the original complaint
and the cause would not have been time
barred.

Id. at 207. (Emphasis in Duke opinion).

8
 As far as the earlier version of Rule 15.03 is

concerned, Duke controls here. The fact that the appellants’

counsel advised an agent of Acecodent Incorporated, within the

period of limitations, that he “was filing a lawsuit against the

company,” does not satisfy the language of either version of Rule

15.03. The earlier version of the Rule provided an “escape”

clause if, and only if, two requirements4 were met and then only

if those requirements were met during the applicable period of

limitations. As pertinent here, it was incumbent upon the

appellants to show that Acecodent Incorporated had “received such

notice of the institution of the action that he will not be

prejudiced in maintaining his defense on the merits,” before the

limitations period expired. Rule 15.03, Tenn. R. Civ. P., before

the July 1, 1995, amendment. (Emphasis added). This is not the

same as showing the defendant knew that the plaintiffs intended

to file suit.

The appellants seem to recognize that the earlier

version of Rule 15.03 is of no help to them because they argue

that Rule 15.03, as amended effective July 1, 1995, applies to an

amended complaint filed after that date. Under the facts of this

case, we do not agree with the appellants’ contention.

It is true that Rule 15.03 was amended5 effective July

1, 1995, to avoid, at least during an expanded time frame, what

the Advisory Commission referred to as the “unfortunate result”

4
The two requirements were also carried over into the new version of
Rule 15.03.
5
The amendment “tacked on” to the statute of limitations an additional
120 days within which the requirements for relation back could be satisfied.

9
of those cases where, because of a misnomer, the correct

defendant is not required to defend on the merits. It is

likewise true that if the Rule as amended effective July 1, 1995,

applies to the amended complaint, it serves to “save” the

appellants’ cause of action from Acecodent Incorporated’s defense

of the statute of limitations because the amended complaint was

served within 120 days of the expiration of the statute of

limitations.

Significantly, the statute of limitations as to the

appellants’ claims against Acecodent Incorporated expired prior

to the effective date of the amendment to Rule 15.03. As

previously indicated, the appellants concede this in their brief.

Once a statute of limitations bars a claim under then-

existing law, it cannot be revived by subsequently enacted

legislation. Girdner v. Stephens, 48 Tenn. 280, 286 (Tenn.

1870). This proposition finds a constitutional basis in Article

I, Section 20, of the Tennessee Constitution:

. . . no retrospective law, or law impairing
the obligations of contracts, shall be made.

The Supreme Court has stated that “retrospective” laws are

generally defined, from a legal standpoint,
as those which take away or impair vested
rights acquired under existing laws or create
a new obligation, impose a new duty, or
attach a new disability in respect of
transactions or considerations already
passed.

10
Morris v. Gross, 572 S.W.2d 902, 907 (Tenn. 1978).

In the Girdner case, the Supreme Court set forth the

controlling proposition in the instant case:

It has long been the law in Tennessee that
when a cause of action is barred by a statute
of limitation, in force at the time the right
to sue arose, and until the time of
limitation expired, that the right to rely
upon the statute as a defense is a vested
right that can not be disturbed by subsequent
legislation.

Girdner, 48 Tenn. at 286. See also Henderson v. Ford, 488 S.W.2d

720, 722 (Tenn. 1972); Collier v. Memphis Light, Gas & Water

Div., 657 S.W.2d 771, 775 (Tenn. App. 1983); Morford v. Yong Kyun

Cho, 732 S.W.2d 617, 620 (Tenn. App. 1987); Buckner v. GAF Corp.,

495 F. Supp. 351, 353 (E.D. Tenn. 1979).

The appellants are correct that the July 1, 1995,

amendment to Rule 15.03 is “remedial or procedural in nature.”

Cf. Kee v. Shelter Insurance, 852 S.W.2d 226, 228 (Tenn. 1993).

Generally, “[s]uch statutes apply retrospectively, not only to

causes of action arising before such acts become law, but also to

all suits pending when the legislation takes effect, unless the

legislature indicates a contrary intention or immediate

application would produce an unjust result.” Id. See also

Saylors v. Riggsbee, 544 S.W.2d 609, 610 (Tenn. 1976). However,

this proposition is subject to still another exception that is

critical in this case:

11
 . . . retrospective application of a remedial
or procedural statute is constitutionally
forbidden if it takes away a vested right or
impairs contractual obligations.

Kee, 852 S.W.2d at 228. (Emphasis added).

When the one-year anniversary of the appellants’ causes

of action passed into history without a suit being filed

specifically naming Acecodent Incorporated as a defendant, that

entity acquired a vested right in the defense of the applicable

one-year statute of limitation. It cannot thereafter be

constitutionally deprived of that vested right by the amendment

to Rule 15.03.

There are no disputed material facts in this case. The

facts before us show that the appellee, Acecodent Incorporated,

is entitled to summary judgment. The trial court was correct in

granting same. Assuming, for the purpose of argument, that this

appeal is properly before us, we find and hold that the

appellants’ single issue on appeal is without merit.

The appeal in this case is hereby dismissed. Costs of

the appeal are taxed to the appellants. This case is remanded

for the collection of costs assessed below, pursuant to

applicable law.

_________________________________
Charles D. Susano, Jr., J.

12
CONCUR:

_____________________________
Houston M. Goddard, J.

_____________________________
Don T. McMurray, J.
 I N THE COURT OF APPEALS OF TENNESSEE

EASTERN SECTI ON
FILED
September 23, 1996

Cecil Crowson, Jr.
RI CHARD C. CANADA a nd wi f e ) Appellate C ourt Clerk
SHARON CANADA )
)
Pl a i nt i f f s - Appe l l a nt s )
)
)
v. )
)
)
ACE CODENT, ZAHN DENTAL COM PANY, ) BRADLEY COUNTY
I NC. , a nd HENRY SCHEI N, I NC. ) 03A01- 9606- CV- 00182
)
)
De f e nda nt s )
)
)
a nd )
)
)
ACECODENT I NCORPORATED )
)
De f e nda nt - Appe l l e e )

CONCURRI NG OPI NI ON

Al t hough I di s s e nt e d i n t he c a s e of Cobb v. Br i e r ,

c i t e d i n t he ma j or i t y o pi ni on, whi c h wa s t he f i r s t t i me , t o my

k n o wl e d ge , t ha t t hi s Cour t ha d di s mi s s e d a n a ppe a l f or f a i l ur e t o

f i l e a c opy of t he not i c e of a ppe a l wi t h t he Appe l l a t e Cour t

Cl e r k , I r e c ogni z e t ha t Cobb, unl e s s ove r t ur ne d by t he

Le g i s l a t ur e o r t he Supr e me Cour t , i s t he s e t t l e d l a w a s t o t he

q u e s t i o n.

14
 I a l s o c onc ur i n t he ma j or i t y' s t r e a t me nt of t he me r i t s

o f t h e a ppe a l .

_______________________________
Hous t on M Godda r d, P. J .
.

15