Mary L. Scales v. H. G. Hill Realty Co., LLC

01/30/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
December 5, 2017 Session

MARY L. SCALES V. H.G. HILL REALTY CO., LLC, ET AL.

Appeal from the Circuit Court for Davidson County
No. 14C5154 Kelvin D. Jones, Judge

No. M2017-00906-COA-R3-CV

A customer slipped and fell at a grocery store and sued four different entities that owned
and/or operated the store. When two of the defendants filed a motion to compel the
plaintiff to respond to discovery responses, the plaintiff voluntarily dismissed these
defendants from the action. Then, in response to an answer to an amended complaint in
which another defendant asserted the comparative fault of the dismissed defendants, the
plaintiff filed a second amended complaint adding the dismissed defendants back in as
named defendants pursuant to Tenn. Code Ann. § 20-1-119. The newly added defendants
filed a motion to dismiss, which the trial court granted. The plaintiff appealed, and we
reverse the trial court’s judgment. We hold that the statute permitted the plaintiff to add
the formerly dismissed defendants back into the lawsuit.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and
Remanded

ANDY D. BENNETT, J., delivered the opinion of the Court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and W. NEAL MCBRAYER, J., joined.

H. Anthony Duncan, Nashville, Tennessee, for the appellant, Mary L. Scales.

Behnaz Sulkowski and Julie Bhattacharya Peak, Brentwood, Tennessee, for the appellees,
H.G. Hill Realty Co., LLC and Hill Center at Belle Meade, LLC.

OPINION
This case involves the interpretation of Tenn. Code Ann. § 20-1-119 and its
application to H.G. Hill Realty Co., LLC and Hill Center at Belle Meade, LLC (together,
“the Hill Defendants”), entities that were initially named as defendants, then dismissed
voluntarily, and finally added back to the lawsuit as defendants. The trial court
concluded that the statute did not permit the plaintiff to add the Hill Defendants back in
as comparative tortfeasors, which we believe was error.

According to the complaint she filed on December 4, 2014, Mary L. Scales slipped
and fell on February 19, 2014, at a Publix supermarket located on Harding Pike in
Nashville, Tennessee. Ms. Scales asserted that a Publix employee was pushing a
shopping cart containing her groceries out of an elevator and into the parking garage
when she slipped on an unsecured mat that was on the ground right outside the elevator
and fell, sustaining injuries. Ms. Scales alleged that the shopping cart as well as the
unsecured mat caused her to trip. She was taken by ambulance to a nearby hospital
where she was treated for a head injury. Ms. Scales asserted claims for ordinary
negligence, premises liability, and negligence per se against Publix Super Markets, Inc.
and Publix Tennessee, LLC (together, “Publix”) and claims for premises liability and
negligence per se against the Hill Defendants.

Publix filed an answer on January 8, 2015, in which it asserted, inter alia, “the
comparative fault of or attributable to the co-defendants as an affirmative defense.” The
Hill Defendants filed an answer on January 15, 2015, in which they asserted as an
affirmative defense the comparative fault of Publix. The Hill Defendants served
discovery upon Ms. Scales in January and filed a motion to compel her to respond to the
discovery in April 2015. Ms. Scales then filed a notice of voluntary dismissal without
prejudice of the Hill Defendants and Publix Super Markets, Inc. The trial court issued an
order granting the voluntary dismissal of these defendants without prejudice on May 29,
2015.

Ms. Scales sought leave to file an amended complaint on August 15, 2016, to
“clean things up a little” by clarifying that only one defendant remained in the lawsuit,
Publix Tennessee, LLC. The trial court granted Ms. Scales’ motion, and Ms. Scales filed
her amended complaint on September 26, 2016. Publix filed its answer to the amended
complaint on September 30, 2016, and, as before, Publix asserted as an affirmative
defense the comparative fault of the Hill Defendants.

Ms. Scales then filed a second amended complaint on October 5, 2016, in which
she named as defendants Publix Tennessee, LLC and the Hill Defendants. Ms. Scales
specified in this complaint that the Hill Defendants were “being made parties to this civil
action pursuant to Tenn. Code Ann. § 20-1-119” based on allegations Publix made in its
answer to her amended complaint asserting the comparative fault of the Hill Defendants.
A summons was issued to each of the Hill Defendants on October 5, 2016. Publix and
the Hill Defendants filed answers to the second amended complaint. The Hill Defendants
then filed a motion to dismiss the second amended complaint in January 2017.

The basis of the Hill Defendants’ motion to dismiss was that Ms. Scales’ second
amended complaint was barred by the one-year statute of limitations and her failure to

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satisfy the requirements of Tenn. Code Ann. § 20-1-119. Tennessee Code Annotated
section 20-1-119 provides, in pertinent part, as follows:

(a) In civil actions where comparative fault is or becomes an issue, if a
defendant named in an original complaint initiating a suit filed within the
applicable statute of limitations, or named in an amended complaint filed
within the applicable statute of limitations, alleges in an answer or amended
answer to the original or amended complaint that a person not a party to the
suit caused or contributed to the injury or damage for which the plaintiff
seeks recovery, and if the plaintiff’s cause or causes of action against that
person would be barred by any applicable statute of limitations but for the
operation of this section, the plaintiff may, within ninety (90) days of the
filing of the first answer or first amended answer alleging that person’s
fault, either:

(1) Amend the complaint to add the person as a defendant pursuant to Tenn.
R. Civ. P. 15 and cause process to be issued for that person; or

(2) Institute a separate action against that person by filing a summons and
complaint. If the plaintiff elects to proceed under this section by filing a
separate action, the complaint so filed shall not be considered an original
complaint initiating the suit or an amended complaint for purposes of this
subsection (a).

(b) A cause of action brought within ninety (90) days pursuant to
subsection (a) shall not be barred by any statute of limitations. This section
shall not extend any applicable statute of repose, nor shall this section
permit the plaintiff to maintain an action against a person when such an
action is barred by an applicable statute of repose.

Following a hearing, the trial court agreed with the Hill Defendants and granted
their motion to dismiss Ms. Scales’ second amended complaint. The trial court wrote:

1) There was a pending allegation of comparative fault against H.G. Hill
Defendants by the Publix Defendants at the time the Plaintiff non-suited
them on May 21, 2015 and the entry of the order of dismissal on May 29,
2015.

2) The Publix Defendants entities are a defendant that was sued within the
applicable statute of limitations and first alleged fault against the H.G. Hills
entities in its original Answer filed on January 8, 2015.

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 3) The parties do not contest that H.G. Hill Realty Company, LLC and Hill
Center at Belle Meade, LLC became non-parties for purposes of Tenn.
Code Ann. § 20-1-119 on May 29, 2015.

4) This Court concludes that both prongs of Tenn. Code Ann. § 20-1-119
were met on May 29, 2015. Therefore, Plaintiff had ninety (90) days from
May 29, 2015, in which to file an Amended Complaint and have process
issued against the H.G. Hill Defendants in order to rely on the savings
provisions of Tenn. Code. Ann. § 20-1-119. The Plaintiff’s Complaint filed
on October 5, 2016, was untimely. Therefore, the claims against H.G. Hill
Realty Company, LLC and Hill Center at Belle Meade, LLC are barred as a
matter of law.

Ms. Scales appeals the trial court’s judgment dismissing the Hill Defendants from
her second amended complaint. She contends the Hill Defendants were properly added
as party-defendants pursuant to Tenn. Code Ann. § 20-1-119.

ANALYSIS

A motion to dismiss based on Tenn. R. Civ. P. 12.02(6) challenges only the legal
sufficiency of the complaint, not the strength of the plaintiff’s case. Webb v. Nashville
Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011); Trau-Med of Am.,
Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696 (Tenn. 2002). The motion is resolved based
on the pleadings alone. Webb, 346 S.W.3d at 426 (citing Leggett v. Duke Energy Corp.,
308 S.W.3d 843, 851 (Tenn. 2010)). A defendant who files a motion to dismiss “‘admits
the truth of all of the relevant and material allegations contained in the complaint, but . . .
asserts that the allegations fail to establish a cause of action.’” Id. (quoting Brown v.
Tenn. Title Loans, Inc., 328 S.W.3d 850, 854 (Tenn. 2010)). When ruling on a motion to
dismiss, courts are to ‘“construe the complaint liberally, presuming all factual allegations
to be true and giving the plaintiff the benefit of all reasonable inferences.’” Id. (quoting
Tigg v. Pirelli Tire Corp., 232 S.W.3d 28, 31-32 (Tenn. 2007)). A motion to dismiss
should be granted ‘“only when it appears that the plaintiff can prove no set of facts in
support of the claim that would entitle the plaintiff to relief.”’ Id. (quoting Crews v.
Buckman Labs. Int’l, Inc., 78 S.W.3d 852, 857 (Tenn. 2002)). We review a trial court’s
decision granting a motion to dismiss de novo, affording the trial court’s decision no
presumption of correctness. Id.; Brown, 328 S.W.3d at 855. This case involves statutory
construction, which we also review de novo. Mills v. Fulmarque, Inc., 360 S.W.3d 362,
366 (Tenn. 2012); Austin v. State, 222 S.W.3d 354, 357 (Tenn. 2007).

The only issue is whether Ms. Scales properly added the Hill Defendants to the
second amended complaint filed on October 5, 2016, pursuant to the savings statute

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found at Tenn. Code Ann. § 20-1-119.1 The Hill Defendants concede that Publix was
sued within the applicable statute of limitations and that when Publix first alleged fault
against them in its original answer filed in January 2015, the Hill Defendants were still
parties. When Ms. Scales dismissed the Hill Defendants from her complaint on May 29,
2015, however, the Hill Defendants argue they became non-parties for purposes of Tenn.
Code Ann. § 20-1-119 and that the 90-day period within which Ms. Scales could file an
amended complaint adding the Hill Defendants back into the action began at that point.

Ms. Scales argues that the 90-day window did not begin to run until September 30,
2016, when Publix filed its answer to her second amended complaint, because that was
the first time fault was asserted against the Hill Defendants, as non-parties, in an answer
filed after the statute of limitations had expired. According to Ms. Scales, the 90-day
window of § 20-1-119 can only be triggered by the filing of an answer by a defendant
sued within the statute of limitations that alleges fault against a non-party after the statute
of limitations has run.

When interpreting a statute, courts strive to give full effect to the legislature’s
purpose without exceeding its “intended scope.” Friedmann v. Marshall Cnty, 471
S.W.3d 427, 433 (Tenn. Ct. App. 2015) (quoting Lee Med., Inc. v. Beecher, 312 S.W.3d
515, 526 (Tenn. 2010)); see also Austin, 222 S.W.3d at 357 (citing State v. Flemming, 19
S.W.3d 195, 197 (Tenn. 2000)). ‘“We determine legislative intent from the natural and
ordinary meaning of the statutory language within the context of the entire statute without
any forced or subtle construction that would extend or limit the statute’s meaning.”’
Austin, 222 S.W.3d at 357 (quoting Flemming, 19 S.W.3d at 197). When the language
used is clear and unambiguous, courts do not look beyond the text of the statute to
determine its meaning. Friedmann, 471 S.W.3d at 433.

The Tennessee Supreme Court has written that the purpose of § 20-1-119 is ‘“to
provide an injured party with a fair opportunity to bring before the court all persons who
caused or contributed to the party’s injuries,”’ Mann v. Alpha Tau Omega Fraternity, 380
S.W.3d 42, 50 (Tenn. 2012) (quoting Townes v. Sunbeam Oster Co., Inc., 50 S.W.3d 446,
451 (Tenn. Ct. App. 2001)), and it has instructed that the statute “must be construed
liberally to effectuate its remedial purpose.” Id; see also Townes, 50 S.W.3d at 451
(opining that statute “is remedial and should be construed liberally”).

Section 20-1-119 is not ambiguous, so we will not review its legislative history in
our interpretation of it. Queen’s Tree Surgery, Inc. v. Metro. Gov’t of Nashville &
Davidson Cnty., No. M2003-00228-COA-R3-CV, 2003 WL 22768689, at *2 (Tenn. Ct.
App. Nov. 24, 2003); Townes, 50 S.W.3d at 453 n.6. A plain reading of the statute
indicates that a plaintiff is permitted to assert a claim against a person not already a party
to the complaint within 90 days if (1) a defendant is named in an original or amended

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Ms. Scales is not relying on the one-year savings statute found in Tenn. Code Ann. § 28-1-105.
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complaint within the applicable statute of limitations, (2) that defendant alleges in an
answer or amended answer that a person not a party to the suit caused or contributed to
the injury at issue, and (3) the plaintiff’s cause(s) of action against that person would be
barred by the applicable statute of limitations were it not for the statute. Tenn. Code
Ann. § 20-1-119. The 90-day period runs from the time the defendant alleges in the
answer or amended answer that the person so described caused or contributed to the
injury at issue. Id.

The Townes court found that the statute does not require a plaintiff to be diligent
about discovering the identities of all potentially liable persons in order to rely on this
statute and that “a plaintiff’s knowledge of the existence of other persons who might be
liable for the plaintiff’s injuries is irrelevant.” Townes, 50 S.W.3d at 452-53. The Mann
Court explained that “[a] person not a party to the suit,” as that phrase is used in the
statute, “includes any defendant previously dismissed” from the lawsuit. Mann, 380
S.W.3d at 52. Thus, the fact that Ms. Scales dismissed the Hill Defendants from the
action in May 2015 does not affect her ability to bring them back in as defendants in
October 2016 so long as the requirements of the statute are satisfied.

A person who was formerly a named defendant ceases to be “a party to the suit”
when the trial court issues an order dismissing the person from the action. See Mann, 380
S.W.3d at 50 (stating that named defendant ceases to be “a party to the suit” for purposes
of § 20-1-119 when trial court issues order dismissing defendant from action). The Mann
Court rejected the defendants’ argument that a plaintiff must assert new claims against a
defendant who was dismissed before the plaintiff filed an amended complaint to bring the
defendant back in. Id. at 51. The Court found that Tennessee law “does not require
plaintiffs to allege different facts and theories in an amended complaint.” Id.

The Hill Defendants cite the case McCullough v. Johnson City Emergency
Physicians, P.C., 106 S.W.3d 36 (Tenn. Ct. App. 2002), as support for their argument
that Ms. Scales is not entitled to rely on Tenn. Code Ann. § 20-1-119 to include them as
comparative tortfeasors in her third amended complaint. In McCullough, Dr. Wyche and
Wyche & Wyche identified Cardiology Consultants as the sole or contributing tortfeasor
in their answer to the plaintiffs’ second amended complaint. McCullough, 106 S.W.3d at
46. Cardiology Consultants was a party to the action when this allegation was made. Id.
Cardiology Consultants did not become a non-party until the trial court granted its
motion for summary judgment, which occurred a few weeks after Dr. Wyche and Wyche
& Wyche asserted Cardiology Consultants’ liability. Id. at 46. By the time Dr. Wyche
and Wyche & Wyche identified Cardiology Consultants as a tortfeasor, however, the
statute of limitations had expired on the plaintiffs’ claims against Cardiology Consultants.
Id. at 41. The McCullough court found that the 90-day period set forth in the statute
began running once it granted Cardiology Consultants’ motion for summary judgment,
rendering Cardiology Consultants a non-party. Id.

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 Relying on McCullough, the Hill Defendants argue that Publix initially identified
them as comparative tortfeasors in its first amended complaint, filed on January 8, 2015.
The Hill Defendants were party defendants at that point, and they did not become non-
parties until the trial court entered an order on May 29, 2015, granting Ms. Scales’
voluntary dismissal. At that point, according to the Hill Defendants, the statute’s
requirements were satisfied and Ms. Scales had ninety days in which to amend her
complaint to add the Hill Defendants back in as parties. Because Ms. Scales did not file
an amended complaint bringing the Hill Defendants back in as defendants until October
5, 2016, which is more than 90 days after May 29, 2016, the Hill Defendants contend Ms.
Scales was unable to rely on the statute to bring them back into the lawsuit.

We disagree with the Hill Defendants’ position. Unlike the case in McCullough,
when Publix first alleged the comparative fault of the Hill Defendants, Ms. Scales’ cause
of action against the Hill Defendants was not barred by the applicable statute of
limitations “but for the operation of this section.” Tenn. Code Ann. § 20-1-119. Publix
first asserted the Hill Defendants’ liability on January 8, 2015. According to Ms. Scales’
complaint, she fell on February 19, 2014. Pursuant to the one-year statute of limitations
applicable to her personal injury claims, Tenn. Code Ann. § 28-3-104(a)(1)(A), Ms.
Scales’ cause of action against the Hill Defendants was still viable when Publix identified
the Hill Defendants as comparative tortfeasors on January 8, 2015.

The first time Publix identified the Hill Defendants as tortfeasors when they were
not parties to the suit and when the statute of limitations against them had run was when
Publix filed its answer to Ms. Scales’ amended complaint on September 30, 2016. From
this date, Ms. Scales had 90 days under the statute in which to file another complaint
naming the Hill Defendants as parties to the complaint. See Doyle v. Frost, 49 S.W.3d
853, 859 (Tenn. 2001) (stating Tenn. Code Ann. § 20-1-199 “applies in comparative fault
cases when a plaintiff has sued a defendant and the defendant alleges, after the statute of
limitations has expired, that a non-party caused or contributed to the plaintiff’s injury.”);
see also McNabb v. Highways, Inc., 98 S.W.3d 649, 654 (Tenn. 2003) (providing statute
applies to tortfeasor defendant identified in answer after statute of limitations against
tortfeasor has run). Ms. Scales filed her second amended complaint on October 5, 2016,
which was within this 90-day window. Thus, we hold that Ms. Scales satisfied the
requirements of Tenn. Code Ann. § 20-1-119 and that the trial court erred by granting the
Hill Defendants’ motion to dismiss the complaint.2

In Queen’s Tree Surgery, Inc. v. Metropolitan Government of Nashville and
Davidson County, the defendant argued that “it is a perversion of the statute to permit a

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We note that Ms. Scales will not be able to continue dropping and adding the Hill Defendants to her
complaint indefinitely. See Tenn. Code App. § 20-1-119(b) (cause of action brought within 90 days
pursuant to section (a) “shall not extend any applicable statute of repose . . . .”); TENN. R. CIV. P. 41.01(2)
(“[A] notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has
twice dismissed in any court an action based on or including the same claim.”).
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plaintiff to non-suit a defendant for the singular purpose of refiling under the statute.”
Queen’s Tree Surgery, 2003 WL 22768689, at *2. This court disagreed, noting that
“plaintiff merely availed itself of all possible remedies available within the law through
skillful and diligent representation.” Id. The same can be said here.

CONCLUSION

The judgment of the trial court is reversed, and this matter is remanded for further
proceedings consistent with this opinion. Costs of appeal shall be assessed against the
appellees, Hill Realty Company, LLC and Hill Center at Belle Meade, LLC.

________________________________
ANDY D. BENNETT, JUDGE

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