IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

June 26, 2012 Session

CHEYENNE DUFFER v. KEYSTOPS, LLC.

Appeal from the Circuit Court for Davidson County

No. 08C1823 Hon. Hamilton V. Gayden, Jr., Judge

No. M2011-01484-COA-R3-CV - Filed July 31, 2012

This appeal arises out of a personal injury suit, wherein the plaintiff and Dewayne Duffer

filed suit against a trucking company for injuries suffered in an accident and for loss of

consortium as a result of the accident. Plaintiff’s employer intervened to recover worker’s

compensation benefits paid to plaintiff. Soon thereafter, the trucking company discovered

that plaintiff was male, had filed the action using an assumed female identity, and had lied

throughout the discovery process. The trucking company filed a motion for summary

judgment. The court granted the motion and dismissed plaintiff’s and employer’s

complaints, finding that plaintiff had committed a fraud upon the court and that employer had

failed to file suit within the applicable statute of limitations because plaintiff’s complaint was

rendered void ab initio. Plaintiff and employer appeal. We affirm the dismissal of plaintiff’s

complaint but reverse the dismissal of employer’s complaint.

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

Affirmed in Part, Reversed in Part; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the court, in which HERSCHEL P. FRANKS,

P.J., and D. MICHAEL SWINEY, J., joined.

Peter Andrew Lampros, Atlanta, Georgia, for the appellant, Jason Elmer Johnston a/k/a

Cheyenne Duffer.

Charles E. Pierce and Julie Cochran Fuller, Knoxville, Tennessee, for the appellant, Erie

Insurance Company.

Richard D. Moore and Timothy A. Drown, Nashville, Tennessee, for the appellee, Keystops,

LLC., d/b/a Key Oil Company.
OPINION

I. BACKGROUND

Jason Elmer Johnston (“Plaintiff”) was employed by Caldwell Paving & Asphalt

Company in Tennessee and was assigned to drive a dump truck in connection with his duties.

On June 13, 2007, he had worked for the company for approximately nine days when he was

involved in an accident with another truck driven by Robert Love and owned by Keystops,

LLC (“Keystops”). On that day, Plaintiff’s was driving from Nashville to Gallatin, while

transporting a load of sand in the dump truck. As he approached the traffic in front of him,

he slowly came to a stop “due to congestion or for some other reason.” However, Mr. Love

was unable to stop and crashed into the rear of Plaintiff’s truck, causing Plaintiff’s truck to

turn over onto the driver’s side. Plaintiff crawled out of the passenger’s side window and

discovered that Mr. Love’s truck was on fire, while Mr. Love, who was also on fire, was

trapped. Plaintiff fell from his truck, landing on his knee. He then managed to move to the

embankment on the side of the road. He was eventually escorted away from the fire shortly

before Mr. Love’s truck exploded. Mr. Love died from injuries sustained in the accident. 

On June 9, 2008, Plaintiff and Dewayne Duffer (collectively “Plaintiffs”) filed a

personal injury lawsuit against Keystops. The complaint was filed using Plaintiff’s assumed

identity, Cheyenne Duffer. Plaintiffs asserted that they were husband and wife and referred

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to Plaintiff using feminine terminology. They alleged that Keystops was liable for Mr.

Love’s actions and that Mr. Love was negligent in his operation of the vehicle and had

caused the accident, injuring Plaintiff. They also alleged that Mr. Love had a poor driving

history, that Keystops was aware or should have been aware of Mr. Love’s driving history,

and that the hiring and retention of Mr. Love amounted to “gross negligence and/or

recklessness.” They requested damages to compensate them for medical bills, lost income,

loss of consortium, loss of use and property damage, pain and suffering, and diminished

capacity to earn. They also requested punitive damages, attorney fees, and costs. Keystops

eventually admitted liability for the accident but asserted that Plaintiff had not sustained

personal injuries “to the extent alleged” and that it was not liable for punitive damages.

On April 15, 2009, Erie Insurance Company (“Erie”) filed a motion to intervene

pursuant to Rule 24 of the Tennessee Rules of Civil Procedure. Erie alleged that Plaintiff

had recovered worker’s compensation benefits and that pursuant to Tennessee Code

While Plaintiff had breast implants, he had retained his reproductive organs and was for all intents and 1

purposes a man, thereby rendering his marriage to Mr. Duffer, a man, invalid and his claim for loss of

consortium without merit. Tenn. Code Ann. § 36-3-113; see also Tenn. Code Ann. § 25-1-106. He had also

not legally changed his name to Cheyenne Duffer. 

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Annotated section 50-6-112, it was entitled to intervene in an effort to protect a subrogation

lien for the benefits that had been paid and for any benefits that may be paid in connection

with the accident in the future. The court granted the motion to intervene, and Erie filed its

intervening complaint on September 21, 2009.

In 2009, Plaintiff responded to the first set of interrogatories requested by Keystops.

Plaintiff listed his name as Cheyenne K. Duffer, denied ever having been involved in any

prior accidents or injuries that required treatment from a physician, and denied ever having

been involved in any civil lawsuits, including any prior worker’s compensation claims. As

discovery progressed, Keystops learned that Plaintiff was a man, that his name was Jason

Elmer Johnston, that he had been legally married to a woman, and that he had fathered three

children prior to his assumption of the female persona named in the complaint. Keystops

also learned that Plaintiff had been married to a man named David Palmer, had filed a civil

suit with Mr. Palmer relating to a prior vehicular accident, had sought worker’s compensation

benefits in a prior case, and had been involved in a civil suit to recover personal property in

which it was alleged that he had unlawfully retained ten exotic birds that belonged to Gerald

Stewart.

Armed with this information, Keystops deposed Plaintiff on April 23, 2010. These

depositions were videotaped and transcribed. Keystops questioned Plaintiff relating to his

life prior to his assumption of the name Cheyenne Duffer. Plaintiff denied that he had ever

been married to a woman, that he had ever fathered any children, and that he had ever lived

as a man. When confronted with pictures of each of his three children and his prior wife, he

pretended that he did not recognize them. Instead of admitting his past life when he was

confronted with a copy of his birth certificate, Plaintiff concocted an elaborate story. He

alleged that Jason Elmer Johnston was his twin brother and that his mother refused to raise

him because he was a hermaphrodite. He asserted that he had never met his brother but

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admitted that he had contacted him on at least one occasion. He alleged that he and his

brother scheduled a time to meet but that his brother died in a car accident on the way to meet

him. When asked about his marriage to Mr. Palmer, he alleged that the marriage was never

legal because they had forgotten to submit the appropriate paperwork. He denied that the

marriage was annulled because he was a man.

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At first, Plaintiff denied that he had ever been involved in any prior accidents, had

ever filed a lawsuit relating to those accidents, and had ever filed for worker’s compensation

He later admitted that he was not a hermaphrodite and did not have female reproductive organs.

2

Mr. Johnston and Mr. Palmer were married in Kentucky, which does not recognize marriages between

3

members of the same sex. See Ky. Rev. Stat. Ann. § 402.020(1)(d).

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benefits. Upon admitting that he had been involved in a prior vehicular accident, he alleged

that he did not remember being treated by several doctors for his injuries and that he had

forgotten that he had filed a lawsuit for injuries he sustained in that accident. Upon admitting

that he had filed a prior worker’s compensation claim, he alleged that he never received any

money. He refused to acknowledge any other worker’s compensation claims that may have

been filed using his alias. He also denied any knowledge relating to a man named Mr.

Stewart. When confronted with a complaint filed by Mr. Stewart, he alleged that he had

simply forgotten that he had paid Mr. Stewart $5,000 for his unlawful retention of Mr.

Stewart’s exotic birds in fulfillment of the judgment entered against him.

Several months later, Mr. Duffer voluntarily dismissed his claim for loss of

consortium without prejudice. Approximately five months later, Plaintiff filed an amended

complaint using his alias, Cheyenne Duffer, and removing the claim for loss of consortium

and any mention of Mr. Duffer as a party. Eight days later, Keystops filed a motion for

summary judgment, alleging that Plaintiff “acted contemptuously and ha[d] engaged in a

course of conduct that was designed to thwart the possibility of a fair trial by filing an initial

complaint and an amended complaint using a false identity and by committing perjury

multiple times while giving sworn testimony in the lawsuit.”

Approximately one month later, Plaintiff responded to the motion for summary

judgment by stating,

[Plaintiff’s] lifestyle, while admittedly outside of traditional societal norms,

has absolutely no bearing on the fact that []he was injured as a result of

[Keystop’s] negligence, suffered because of that negligence, and is entitled to

compensation because of that negligence.

Plaintiff was born Jason E. Johnston in Kansas on January 8, 1966.

Approximately twelve years ago, Plaintiff began living and identifying as a

woman. Plaintiff began using the name Cheyenne, underwent cosmetic breast

enhancement surgery, and changed the name on h[is] driver’s license and

social security card to reflect the adopted name of Cheyenne. In all aspects of

h[is] life, Plaintiff lives as a woman. Plaintiff has not used the name Jason

Johnston since []he adopted the name Cheyenne and does not identify

[himself] as Jason Johnston. [H]e is, for all intents and purposes, Cheyenne

Duffer. Plaintiff thought that by changing the identity on h[is] driver’s license

and social security card, []he would thereafter legally be known by h[is]

adopted name.

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Plaintiff alleged that issues concerning his identity were not germane to the claims present

in the case, that he did not use the name for an improper purpose, and that Keystops cannot

show that it was prejudiced by the use of the name because it clearly knew that he was born

Jason Elmer Johnston given the extensive questioning about his gender and background. He

also alleged that the characterization of his testimony as perjury was improper when the

majority of the testimony was indicative of someone who had a “poor memory of certain

events.” He also sought leave from the court to file an amended complaint, substituting

Jason Elmer Johnston as the complaining party. This request was never granted.

Following a hearing on Keystops’s motion for summary judgment, the court found

that Plaintiff committed a fraud upon the court by using a false identity, that he “further

perpetrated” that fraud during the discovery process, and that he “intentionally lied under

oath in an attempt to conceal his fraud.” The court held that the fraud was willful and

intentional because Plaintiff was not “mentally impaired or incapacitated” when he decided

to use his alias and “then lied under oath in an attempt to conceal his fraud.” Relative to

Plaintiffs, the court found that they filed the complaint “in bad faith because loss of spousal

consortium damages are not available under Tennessee law to Dewayne Duffer.” The court

declared that the original complaint was void ab initio and was a nullity and held that the

claims were barred by law because a proper lawsuit was not commenced “within Tennessee’s

one year statute of limitations for personal injury actions.” The court further held that

Plaintiff’s “fraud upon the [c]ourt and false testimony during discovery also support[ed]

involuntary dismissal of [] Plaintiff’s lawsuit pursuant to Rule 41.02(1) of the Tennessee

Rules of Civil Procedure.” Relative to Erie, the court held that Erie’s claims were barred by

Tennessee’s statute of limitations. The court found that Erie failed to file suit against

Keystops within 18 months of the date of the injury and that Erie’s intervening complaint

could not relate back to Plaintiff’s complaint because that complaint was void ab initio. In

so holding, the court dismissed all claims against Keystops with prejudice.

Plaintiff filed a motion to alter or amend, arguing that he never provided “untruthful

testimony” about issues that were germane to the case and that Keystops was aware of his

identity. He asserted that actions should not be dismissed for failure to name the correct

party unless a reasonable time had been provided to allow the real party in interest to ratify,

join, or substitute itself as the party in the action. Relative to his discovery responses, he

asserted that the court had disregarded Tennessee law by dismissing the case when an order

compelling truthful responses had never been filed. He claimed that Keystops was dishonest

by failing to notify him about a subpoena served in Kansas. Lastly, he argued that Keystops

did not file a Rule 41.02(1) motion requesting dismissal. Erie did not object to the motion

and requested that the same relief be granted to it if relief were granted to Plaintiff.

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Keystops responded by asserting that Plaintiff’s false testimony throughout the

discovery process was pertinent to the issues involved in the lawsuit. Keystops asserted that

Plaintiff’s medical, accident, and litigation history were extremely pertinent and that whether

Mr. Duffer could recover damages on a loss of consortium theory was also pertinent.

Keystops alleged that it suffered prejudice as a result of Plaintiff’s dishonesty because it was

forced to conduct extensive investigations in multiple states to uncover Plaintiff’s identity

and his medical, accident, and litigation history. Keystops noted that it requested dismissal

pursuant to Rule 41.02(1) in its reply to Plaintiff’s response to the motion for summary

judgment but admitted that it never filed a specific motion to dismiss on that ground.

Keystops also admitted that it failed to notify Plaintiff regarding the subpoena to Kansas.

Plaintiff responded that Keystops had failed to establish prejudice when its extensive

investigations related to information that was not germane to the case. He also asserted that

dismissal pursuant to Rule 41.02(1) based upon his failure to comply with rules wasimproper

because he should have been given the opportunity to amend his complaint before such a

harsh sanction was imposed.

The court upheld the dismissal of the complaint but reversed its holding that the

dismissal of the complaint was with prejudice. The court held that Plaintiff could re-file the

action, provided he paid the discretionary costs that were awarded to Keystops by separate

order. The courtspecifically declined to address whether a complaint filed in Plaintiff’slegal

name would relate back to the original complaint. This timely appeal followed.

II. ISSUES

We consolidate and restate the issues raised on appeal as follows:

A. Whether the trial court erred in dismissing Plaintiff’s complaint.

B. Whether the trial court erred in dismissing Employer’s intervening

complaint.

C. Whether the dismissal of the action should have been made with prejudice.

III. STANDARD OF REVIEW

On appeal, the factual findings of the trial court are accorded a presumption of

correctness and will not be overturned unless the evidence preponderates against them. See

Tenn. R. App. P. 13(d). The trial court’s conclusions of law are subject to a de novo review

with no presumption of correctness. Blackburn v. Blackburn, 270 S.W.3d 42, 47 (Tenn.

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2008); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). Mixed

questions of law and fact are reviewed de novo with no presumption of correctness; however,

appellate courts have “great latitude to determine whether findings as to mixed questions of

fact and law made by the trial court are sustained by probative evidence on appeal.” Aaron

v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995).

Summary judgment is appropriate where: (1) there is no genuine issue with regard to

the material facts relevant to the claim or defense contained in the motion and (2) the moving

party is entitled to judgment as a matter of law on the undisputed facts. Tenn. R. Civ. P.

56.04. A properly supported motion for summary judgment “must either (1) affirmatively

negate an essential element of the nonmoving party’s claim; or (2) show that the nonmoving

party cannot prove an essential element of the claim at trial.” Hannan v. Alltel Publ'g Co.,

270 S.W.3d 1, 9 (Tenn. 2008). When the moving party has made a properly supported

motion, the “burden of production then shifts to the nonmoving party to show that a genuine

issue of material fact exists.” Id. at 5; see Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn.

1997); Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993). The nonmoving party may not

simply rest upon the pleadings but must offer proof by affidavits or other discovery materials

to show that there is a genuine issue for trial. Tenn. R. Civ. P. 56.06. If the nonmoving party

“does not so respond, summary judgment, if appropriate, shall be entered.” Tenn. R. Civ.

P. 56.06.

On appeal, this court reviews a trial court’s grant of summary judgment de novo with

no presumption of correctness. See City of Tullahoma v. Bedford County, 938 S.W.2d 408,

412 (Tenn. 1997). In reviewing the trial court’s decision, we must view all of the evidence

in the light most favorable to the nonmoving party and resolve all factual inferences in the

nonmoving party’s favor. Luther v. Compton, 5 S.W.3d 635, 639 (Tenn. 1999); Muhlheim

v. Knox. Cnty. Bd. of Educ., 2 S.W.3d 927, 929 (Tenn. 1999). If the undisputed facts support

only one conclusion, then the court’s summary judgment will be upheld because the moving

party was entitled to judgment as a matter of law. See White v. Lawrence, 975 S.W.2d 525,

529 (Tenn. 1998); McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995).

IV. DISCUSSION

A.

1.

The court’s grant of the motion for summary judgment was based upon the initial

finding that the complaint was void ab initio because Plaintiff had committed a fraud upon

the court. The court held that Plaintiff had committed fraud by filing the complaint and the

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amended complaint under an assumed name and that he “further perpetrated his fraud by

failing to truthfully answer discovery.” Having found that the complaint was void ab initio,

the court held that Plaintiff had failed to commence a proper lawsuit within the statute of

limitations for personal injury actions. Plaintiff argues that the trial court erred in granting

the motion for summary judgment because he did not create the alias with malicious intent

or to deceive the court. He also asserts that Keystops was not prejudiced by his use of the

alias. Keystops responds that the court did not err in granting the motion for summary

judgment.

Plaintiff asserts that this court should follow the decisions reached in Sanchez v.

Litzenberger, No. 09 Civ. 7207 (THK), 2011 WL 672413 (S.D.N.Y. Feb. 24, 2011) and

Rodriquez v. City of Highland Park, No. 01 C 4486, 2002 WL 31557628 (N.D.Ill. Nov. 15,

2002). In Sanchez and Rodriquez, the courts ultimately held that the use of an alias did not

warrant dismissal of the case when the plaintiff used the alias prior to the filing of the

complaint, the prejudice was minimal, and the use of the alias was unrelated to the liability

issues involved in the case.

The memorandum opinionsrendered in Sanchez and Rodriquez are merely persuasive

authority from other jurisdictions. Further, the facts presented in this case are materially

different. Unlike the cases cited by Plaintiff, the improper use of an alias in this case related

to an issue that was relevant, namely Plaintiff’s gender. Mr. Duffer could not assert a claim

for loss of consortium if Plaintiff was not his legal spouse. Tenn. Code Ann. § 36-3-113; see

also Tenn. Code Ann. § 25-1-106. Consequently, the use of a female identity was false and

material to issues presented in the case. Plaintiff asserts that his concealment of his true

identity was not made with malicious intent but that he simply believed that he had legally

changed his name. However, when given the chance to acknowledge his former identity and

his gender, Plaintiff fabricated an elaborate story. Additionally, the court’s finding that the

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complaint was void ab initio was not merely based upon Plaintiff’s use of an alias. The court

stated,

This case is not about [] Plaintiff’s sexual orientation or lifestyle choices. This

case is about [] Plaintiff’s flagrant contempt for the judicial process.

(Emphasis added). In its order, the court noted that Plaintiff failed to truthfully answer

discovery, that Plaintiff lied under oath in an attempt to conceal his fraud, and that the

complaint itself was filed in bad faith because loss of consortium damages were not available

to Mr. Duffer.

Plaintiff does not assert that he lacked the mental capacity to acknowledge his identity or to understand the 4

difference between truth and falsehood. 

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Plaintiff also asserts that the grant of the motion for summary judgment was improper

because Keystops did not rely on the improper representations to its detriment. See

Urtuzuastegui v. Kirkland, 366 S.W.3d 128, 133 (Tenn. Ct. App. 2011) (listing the elements

of positive fraud). The court’s ruling in this case was based upon the fraud perpetrated upon

the court through the use of the alias and through Plaintiff’s continued refusal to offer

truthful testimony throughout the discovery process. Additionally, we are hesitant to say that

Keystops was not harmed by Plaintiff’s fraud simply because Keystops uncovered Plaintiff’s

identity and questionable litigation history during discovery and was wise to Plaintiff’s

attempts to conceal the truth. Keystops spent needless hours investigating Plaintiff’s identity

and litigation history, matters which should have been truthfully disclosed. Accordingly, we

conclude that the court did not err in declaring Plaintiff’s complaint void ab initio because

Plaintiff perpetrated a fraud upon the court. Likewise, we also conclude that the court did

not err in granting the motion for summary judgment because Plaintiff failed to file a valid

complaint within the one year statute of limitations for personal injury actions. Tenn. Code

Ann. § 28-1-103(a)(1).

2.

In addition to granting the motion forsummary judgment, the court held that dismissal

was appropriate pursuant to Rule 41.02(1) of the Tennessee Rules of Civil Procedure. On

appeal, the parties do not dispute the court’s authority to dismiss the case pursuant to Rule

41.02(1). Instead, Plaintiff argues that dismissal of the case based upon a discovery violation

was inappropriate when his actions exhibited “at most, confusion or mere negligence.” He

asserts that the court abused its discretion when it imposed its most severe sanction without

consideration of Rules 15 and 17 of the Tennessee Rules of Civil Procedure. Keystops

responds that Rules 15 and 17 cannot be used to cure willful fraud.

“A trial court’s decision to dismiss under Tennessee Rules of Civil Procedure 41.02(1)

is reviewed under an abuse of discretion standard.” Kirkland, 366 S.W.3d at 136-37 (citing

Hodges v. Attorney General, 43 S.W.3d 918, 921 (Tenn. Ct. App. 2000)). “A trial court

abusesits discretion only when it ‘applie[s] an incorrect legalstandard or reache[s] a decision

which is against logic or reasoning that cause[s] an injustice to the party complaining.’”

Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (quoting State v. Shirley, 6 S.W.3d 243,

247 (Tenn. 1999)). If a discretionary decision is within a range of acceptable alternatives,

we will not substitute our judgment for that of the trial court simply because we may have

chosen a different alternative. White v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct.

App. 1999).

“Trial court’s possessinherent, common-law authority to control their dockets and the

proceedings in their courts.” Hodges, 43 S.W.3d at 921. This “authority is quite broad and

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includes the express authority to dismiss cases for failure . . . to comply with the Tennessee

Rules of Civil Procedure.” Id. Rule 41.02(1) provides, in pertinent part,

For failure of the plaintiff to . . . comply with these rules or any order of the

court, a defendant may move for dismissal of an action or of any claim against

the defendant.

(Emphasis added). Here, Plaintiff failed to provide the name of the true party in interest and

filed untruthful responses in answer to interrogatory questions. See Tenn. R. Civ. P. 10.01

(providing that the complaint shall include the name of all parties); Tenn. R. Civ. P. 33.01

(“Each interrogatory shall be answered separately and fully in writing under oath, unless it

is objected to, in which event the reasons for objection shall be stated in lieu of an answer.”).

Plaintiff also lied while under oath during his deposition. See Tenn. R. Civ. P. 30.03

(providing that the deponent is under oath while testifying during a deposition).

We acknowledge that Rule 17 of the Tennessee Rules of Civil Procedure allows for

the substitution of the real party in interest when a mistake has been made in naming the

party and that Rule 15 of the Tennessee Rules of Civil Procedure provides that the properly

accepted amended complaint will relate back to the date of the original pleading. However,

these rules were not intended to authorize suits in the name of “fictitious parties” but were

intended to apply to cases in which the substitution of the real party in interest is “necessary

to avoid injustice.” Chapman v. King, 572 S.W.2d 925, 929 (Tenn. 1978) (internal citation

and quotation omitted). We do not believe that application of these rules was necessary to

avoid injustice when Plaintiff concocted an elaborate story after he was given the chance to

acknowledge his true identity. Plaintiff’s conduct during the deposition belies his assertion

that he used the alias because he simply believed that he had legally changed his name.

Additionally, Plaintiff did not seek to amend the complaint until after he was forced to

acknowledge his untruthful testimony and his true identity.

Moreover, the dismissal of the action as a sanction was based upon Plaintiff’s failure

to provide his correct name and upon his untruthful testimony throughout the discovery

process concerning matters other than his identity. Specifically, Plaintiff denied any

knowledge of prior accidents, civil suits, or claims for worker’s compensation. However,

when confronted with documents during the deposition, Plaintiff promptly remembered the

pertinent details. For example, Plaintiff denied any knowledge of Mr. Stewart, who had sued

him for the unlawful retention of ten exotic birds, but minutes later remembered that he had

paid Mr. Stewart $5,000 in fulfillment of a judgment filed against him. Plaintiff alleges that

these examples are merely indicative of someone with a faulty memory. We, like the trial

court, are not persuaded by this argument. Having reviewed the deposition testimony and

pertinent documents, we agree with the trial court that Plaintiff exhibited a “flagrant

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contempt for the judicial process” and that Plaintiff’s actions justified the imposition of the

most severe sanction available to the court, namely the involuntary dismissal of Plaintiff’s

claims. Accordingly, we conclude that the trial court did not abuse its discretion in

dismissing Plaintiff’s claims pursuant to Rule 41.02(1) of the Tennessee Rules of Civil

Procedure.

B.

Erie argues that the trial court erred in granting the motion for summary judgment

relative to its complaint. Citing Boyd v. McConnell, 212 S.W.2d 365 (Tenn. 1948) and

Cooper v. Logistics Insight Corp., No. M2010-01262-COA-R3-CV, 2011 WL 1874577

(Tenn. Ct. App. May 16, 2011), perm. app. granted (Tenn. Sept. 21, 2011), Erie contends

that an intervening employer may pursue the enforcement of its subrogation lien even when

the injured worker’s original complaint is no longer pending before the court. In the

alternative, Erie asserts that it is entitled to equitable relief because it should not be punished

for Plaintiff’s actions. Keystops responds that Erie did not have a direct cause of action

because Plaintiff filed a lawsuit, thereby entitling Erie the right to merely intervene and

protect its subrogation lien. Keystops asserts that the dismissal of Plaintiff’s complaint

operated as a dismissal of the intervening complaint. In the alternative, Keystops responds

that Erie cannot pursue an independent cause of action because the statute of limitations for

bringing such an action has expired pursuant to Tennessee Code Annotated section 50-6-

112(d)(2). Keystops asserts that a newly filed intervening complaint cannot relate back to

the filing of Plaintiff’s complaint because that complaint was rendered void ab initio.

The court granted the motion for summary judgment relative to Erie because Erie

failed to file its own suit against Keystops within 18 months of the injury. The court held

that the intervening complaint could not relate back to the filing date of Plaintiff’s complaint

because that complaint was rendered void ab initio, meaning that it should be treated as if it

never existed. In Tennessee, an employer seeking to enforce and protect a subrogation lien

against a third-party tortfeasor has two options. The employer may intervene in the action

filed by the employee to protect and enforce its subrogation lien. This right is derived from

Tennessee Code Annotated section 50-6-112(c)(1), which provides,

(c)(1) In the event of a recovery against the third person by the worker, or by

those to whom the worker’s right of action survives, by judgment, settlement

or otherwise, and the employer’s maximum liability for workers’ compensation

under this chapter has been fully or partially paid and discharged, the employer

shall have a subrogation lien against the recovery, and the employer may

intervene in any action to protect and enforce the lien.

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(Emphasis added). If the employee fails to file an action within one year of the date of the

injury, the employer may file its own action against the third-party tortfeasor. This right is

derived from Tennessee Code Annotated section 50-6-112, which provides,

(d)(1) The action against the other person by the injured worker, or those to

whom the injured worker’s right of action survives, must be instituted in all

cases within one (1) year from the date of injury.

(d)(2) Failure on the part of the injured worker, or those to whom the injured

worker’sright of action survives, to bring the action within the one-year period

shall operate as an assignment to the employer of any cause of action in tort

that the worker, or those to whom the worker’s right of action survives, may

have against any other person for the injury or death, and the employer may

enforce the cause of action in the employer’s own name or in the name of the

worker, or those to whom the worker’s right of action survives, for the

employer’s benefit, as the employer’s interest may appear, and the employer

shall have six (6) months after the assignment within which to commence the

suit.

(d)(3) If the cause of action described in subsection (a) arises in a jurisdiction

other than this state and the other jurisdiction has a statute of limitations for

personal injury and wrongful death greater than the one-year statute of

limitations provided in this state, the court hearing the cause of action shall

apply the statute of limitations that provides the injured worker, or those to

whom the injured worker’s right of action survives, the greatest amount of

time in which to institute an action.

(d)(4) Under no circumstancesshall the negligent party described in subsection

(a) benefit from this subsection (d).

(Emphasis added).

In Cooper, the employee and the tortfeasor settled the claim without the employer’s

involvement. 2011 WL 1874577, at *1. On appeal, the court held that the employer was

“entitled to present proof as to the likelihood and amount of future medical expenses they

would incur on behalf of” the employee pursuant to Tennessee Code Annotated section 50-6-

112(c)(2) in support of it subrogation lien. Id. at *4. The court continued that the employer

did not have a separate cause of action against the tortfeasor because the employee had filed

a suit within the one year statute of limitations. Id. at *5. In Boyd, the court held that the

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complaint filed by an intervenor with a direct cause of action against the defendant survived

the dismissal of the initiating complaint. 212 S.W.3d at 366.

Like Cooper, Erie was limited to filing an intervening complaint because Plaintiff

filed his suit within one year of the statute of limitations. Unlike Cooper, this case presents

an interesting problem because Plaintiff never recovered from the tortfeasor. On the

contrary, Plaintiff’s complaint was dismissed. Similar to Boyd, Erie had no control over

Plaintiff’s actions that resulted in the dismissal of the initiating complaint from which Erie’s

intervening complaint derived its legitimacy. Keystops asks this court to preclude Erie’s

recovery of benefits bestowed upon Plaintiff as a result of Keystops’s negligence because the

time for Erie to file its own action had passed due to Plaintiff’s failure to bring a proper cause

of action. We find this argument troubling “when the statute was passed to inter alia

facilitate an employer’s recovery against tortious third parties when the injured employee has

failed to bring an action against such tortious third parties.” Plough, Inc. v. Premier

Pneumatics, Inc., 660 S.W.2d 495, 499 (Tenn. Ct. App. 1983). Additionally, the legislature

specifically provided, “[u]nder no circumstances shall the negligent party” benefit from the

limitations imposed upon the employer in subsection (d) of the statute. Tenn. Code Ann. §

50-6-112(d)(4) (emphasis added). In keeping with that proviso, we hold that the rendering

of Plaintiff’s complaint as void ab initio operated as an assignment of Plaintiff’s cause of

action to Erie, providing Erie with six months within which to file its complaint.

Accordingly, we conclude that the trial court erred in granting the motion for summary

judgment as it related to Erie because Erie filed its complaint prior to the assignment.

C.

Having concluded that the court erred in granting the motion for summary judgment

as it related to Erie, we reject the assertion that the court should have dismissed Erie’s

complaint with prejudice. Keystops and Plaintiff agree that the court’s amendment of the

order to reflect the dismissal of Plaintiff’s complaint as a dismissal without prejudice was

ineffective. In this case, the grant of the motion for summary judgment and the dismissal

pursuant to Rule 41.02(1) was tantamount to a dismissal of the complaint with prejudice

because the statute of limitations had passed. Any amended complaint using Plaintiff’s legal

name would not relate back to the original complaint because that complaint was rendered

a legal nullity. Accordingly, we direct the trial court to modify the final order to reflect that

Plaintiff’s complaint was dismissed with prejudice.

V. CONCLUSION

The judgment of the trial court is affirmed in part, as to the grant of the motion for

summary judgment relative to Plaintiff’s complaint and the dismissal of Plaintiff’s complaint

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pursuant to Rule 41.02(1) of the Tennessee Rules of Civil Procedure. The judgment of the

trial court is reversed in part, as to the grant of the motion for summary judgment relative to

Erie’s complaint and the alteration of the judgment to reflect that the dismissal of Plaintiff’s

complaint was without prejudice. Upon remand, the court is instructed to modify the

judgment to reflect that the dismissal of Plaintiff’s complaint was with prejudice. Costs of

the appeal are taxed one-half to the appellant, Jason Elmer Johnston a/k/a Cheyenne Duffer,

and one-half to the appellee, Keystops, LLC., d/b/a Key Oil Company.

______________________________________

JOHN W. McCLARTY, JUDGE

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