# FILED

September 29, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

______________________________________________

CHESTER R. KELLY, Plaintiff-Appella

nt, Vs.No. 02A01-9712-CV-00305 Haywood Circuit No. 3228 JERRY R. WOOTEN and ANNONA MANUFACTURING, Defendants-Ap

pellees.

___________________________________________________________________________

_ FROM THE HAYWOOD COUNTY CIRCUIT COU RT THE HONORABLE DICK JERMAN, JR., JUDGE

Donald D. Glenn; Waldrop & Hall, P.A. of Jackson

For Defendants-Appellees Charles H. Barnett, III and Douglas R. Bergeron of Jackson

For Plaintiff-Appellant

REVERSED AND REMANDED

Opinion filed:

W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.

CONCUR: ALAN E. HIGHERS, JUDGE HERSCHEL P. FRANKS, JU DGE
This interlocutory appeal involves the application of the Tennessee saving statute to a voluntary nonsuit.1 The letter dated September 22, 1995, returned the Complaint and Summons to

Kelly’s attorney. Duvall stated his belief that Houston General could not be sued under Tennessee law and that any further issuance of process should be directed to the registered agent for Houston General. There apparently was some misunderstanding concerning service of process on Wooten and Annona Manufacturing. The letter stated:

In your letter you stated that I indicated I could receive service of the lawsuit for the named defendants. Your recollections of our conversations concerning this claim are incorrect. I have not ever nor will I

agree to acce

pt service for th

e defendants in this lawsuit. You wil

l need to serve the

named defendan

ts directly.

2 The Appellees raised the contention at oral argument that process may not have been issued in a timely manner. They point to a letter in the record from the Secretary of State for Tennessee which lists the date of service as October 14, 1996. While it seems clear that the Secretary of State did not serve the defendants until after the 30 days required by Tennessee 2 On August 19, 1994, p

laintiff-appell

ant, Chester R. Ke

lly, was involved in

an automobile accident with the vehicle driven by defendant-appellee, Jerry R. Wooten, and owned by defendant-app

ellee, Annona Ma

nufacturing. Ke

lly sustained pers

onal injuries and p

roperty damage in the accident, and on August 17, 1995, filed a suit against Wooten, Annona, and Houston General Insurance Company, Annona’s liability insurance carrier. Both Annona and Houston General are out-of-state corporations headquartered in Texas. Proce ss was issued, and Kelly’s attorney attempted service of process on all defendants by sending a certified letter with summons and complaint to Dan Duvall, a senior claims representative for Houston General. This was the only attempt to serve the defendants, Wooten and Annona. Duvall received a copy of the Summons and Complaint via certified mail on September 20, 1995, outside the 30

-day period set ou

t in Rule 4.03 of the T

ennessee Rules of

Civil Procedure. Duvall returned the Summons and Complaint to Kelly, stating in an accompanying letter that he would not accept service. 1 Duvall sent copie s of this letter to both Annona Manufacturing and Wooten. After receivin

g the letter from D

uvall, Kelly took no

further steps in p

ursuing his lawsuit until August 16, 1996. At that time, Kelly filed a Notice of Voluntary Dismissal with the Haywood County Circuit Court pursuant to Tenn. R. Civ. P. 41.01. Also, on August 16, 1996, Kelly filed th

e instant suit in Hay

wood County Circuit Co

urt naming only Jer

ry R. Wooten and Annona Manufacturing as defendants. Process was issued at that time and served upon both de

fendants. 2law had expired, there is no evidence in the record that Kelly played any part in the delay. 3 Wooten and Annona

filed an answer

and a Motion to Dismiss for Failure to Sta te a Claim Upon Which Relief Can be Granted. The Motion to Dismiss rested on the ground that Kelly’s suit was barred by the one-year statute of limitations. Several months later, Wooten and Annona filed an amended Motion for Partial Dismissal to apply to the personal injury

case. After a hearing on the motion, the trial judge entered an order of dismissal of the personal injury claim which

states: This cause came on to be heard and upon Defendant’s Motion to Dismiss and Amended Motion for Partial D

ismissal, it appear

s unto this Honorabl

e Court as follows: 1. That on or about August 17, 1995, Plaintiff filed a complaint against the Defendants Jerry Wooten, Annona Ma

nufacturing and

Houston General

Insurance Compa

ny under cause number 3171. The Plaintiff attempted to serve all three Defendants on September 13, 1995 by sending a certified letter with summons enclosed to Dan Duvall, an insurance adjuster

with Houston General Insurance Company. 2. That Dan Duvall did not receive the summons until September 20, 1995. On September 22, 1995, Dan Duva

ll returned the su

mmons to the Plaintiff

, instructing him tha

t he would not accept service. Dan Duvall carbon copied same to both Jerry R. Wooten and Annona Manufacturing on same date. 3. That on or about August 16, 1996, Plaintiff dismissed said action without prejudice. 4. That on or about August 16, 1996, Plaintiff refiled his action against the Defendants, Jerry Wooten and Annona

Manufacturing un

der cause numbe

r 3228. Upon the fil

ing of this complaint and summons, process was issued by the Court on August 16, 1996. 5. The Defendants, in response to said complaint filed an answer, Motion to Dismiss and

Amended Motion for

Partial Dismissal. 6. That for good cause shown, it is hereby found that the Plaintiff failed to follow the requirements of T.R.C.P. 3 and 4 and; therefore, is not provided the protection of T.C.A. 28- 1-105, otherwise known as the Savings Statute. The Amended Motion for Partial Dismissal is hereby GRANTED . Accordingly, al l claims asserted

by the Plaintiff for

which there is a one year statute of limitations are dismissed with prejudice. Kelly was granted a Rule 9 Interlocutory Appeal, and the only issue for review is whether the

savings statute is applicable under the facts of this case. ‘[T]he construc

tion of the statute [savings statute] a nd application of t

he law to the fac

ts is a question of law.’ Ganzevoort v. Russe ll , 949 S.W.2d 293, 296 (Tenn. 1997)(quoting Beare Co. v. Tennessee D

ept. of Revenue , 858 S.W.2d 906, 907 (Tenn. 1993)). Therefore, the issue before us is

one of law, and ou

r standard of re

view is de novo without any presumption of correctness. Ridings v. Ralph M. Parso ns Co ., 914 S.W.2d 79, 80 ( Tenn. 1996); Union4 Carbide Corp. v. Huddleston , 854 S.W.2d 87, 91 (Tenn. 1993).Kelly’s original complaint as to the personal injury claim was timely filed within the oneyear statute of limitations, T.C.A. § 28-3-104 (1980 & 1997 Supp.). However, the second complaint, filed on August 16, 1996, fell well outside the time barrier. Therefore, Kelly’s suit will be time-barred unless he can rely on the savings statute to toll the statute of limitations. The Tennessee s

avings statute pro

vides: (a) If the action is commenced within the time limited by a rule or statute of limitation, but the judgment or decree is rendered against the plaintiff upon any ground not concluding right of action, or whe

re the judgment or

decree is rende

red in favor of th

e plaintiff, and is arrested, or reversed on appeal, the plaintiff, or representatives and privies, as the c ase may be, may, from time to time, commence a new action within one (1) year after the reversal or arrest. Actions o

riginally commenc

ed in general ses sions court and subsequently recommenced pursuant to this section in circuit or chancery court shall not be subject to the monetary jurisdic

tional limit original

ly imposed in the gen

eral sessions cou

rt. T.C.A. § 28-1-105(a) (1980 & Supp. 1997). The Tennessee savings statute is remedial in nature, and the courts in Tennessee have “long been committed to th

e view that the ‘sa

vings statute’ . . . s

hould be liberally

construed in furtherance of its purpose and in order to bring cases within its spirit and fair intentions.” Cronin v. Howe , 906 S.W.2d 910, 913 (Tenn. 1995)(citing Kee v. Shelter Ins. , 852 S.W.2d 226, 228 (Tenn. 1993)). Further, “[ t]he purpose of th

e Tennessee sav

ings statute is to provide a diligent plaintiff an opportunity to renew a suit that is dismissed by any judgment or decree that does not conclude the plaintiff’s right of action.” Id. at 912 (citing Dukes v. Montgomery County Nurs ing Home , 639 S.W.2d 910, 913 (Tenn. 1982)). The Tennessee Su

preme Court’s vie

w of the saving sta

tute was clearly

described in Nashville, C. & St. L. Ry. v. Bolton

. The statute has not mere ly letter but a spirit

. That spirit is manifested in the history of the statute. . . . It is that a plaintiff shall not be finally cast out by the force of any judgment or decree whatsoe

ver, not concludi

ng his right of actio

n, without an opport

unity to sue again within the brief period limited. Sharp v. Richardson, 937 S.W.2d 846, 849 (Tenn. 1996) (quoting Nashville, C. & St. L. Ry. v. Bolton , 134 Tenn. 447, 455-6, 184 S.W. 9, 11 (1916))(emphasis added). The savings statute takes on special significance when the plaintiff takes a voluntary nonsuit. The nonsuit serves as a dismissal not on the merits, and in such a situation, the courts of Tennessee have long held that as long as a plaintiff brings a second suit within a year of the3 Tenn. R. Civ. P. 3 was a mended in 1992 to re

quire the filing of

a complaint and summons in order to “commence” an action. This provision remained in effect until 1997 when the summons requirement was deleted. The Tennessee Supreme Court dealt with the version of Rule 3 requiring the filing of both complaint and summons in Old Hickory Eng’r and Mach. Co. . The Court stated that “[a]n action is commenced by filing a complaint.” Old Hickory Eng’r & Ma ch. Co ., 937 S.W.2d at 784. The Court did not address the requirement of f

iling a summons.

4 The appellees rely on the case of Moran v. Weinberger , 149 Tenn. 537, 260 S.W. 966 (1924). The Moran Court expressed that “the [saving] statute is remedial, and is to be liberally construed, but protection against laches, negligence, or other fault of the plaintiff was no part of its purpose.” Moran , 149 Tenn. at 543, 260 S.W. at 967. The Henley Court expressly stated

that Moran’ s quoted language above was dicta, and “to our knowledge no Tennessee appe

llate court has e

ver held that a pa

rty is not entitled to

invoke the statute because of its fault in suffering the adverse judgment.” Henley , 916 S.W.2d at 917. 5 voluntary nonsuit th

e savings statute w

ill protect the pla

intiff and confe

r “the same procedural and substantive benefits that were available to the plaintiff in the first action.” Cronin , 906 S.W.2d at 913. With the above well-established rules of interpretation of the savings statute in mind, we now turn to the determi

native issue of the

case -- was the

original action c

ommenced in accordance with Tennessee law. Tenn. R. Civ. P. 3 governs commencement of an action. Old Hickory Eng’r. & M ach. Co. v. Henry , 937 S.W.2d 782 (Te nn. 1996); Gregory v. McCulley , 912 S.W.2d 175, 177 (Tenn. App. 1995). Commencement of an action requires the filing of a comp

laint. 3 Old Hickory Eng’r. & Mach. Co., 937 S.W.2d at 784. We are well aware that

the version of Rule

3 in effect at the

time of the origina

tion of this suit required both filing of a complaint and summons. Kelly complied with both requirements. Kelly’s only failure involved mistakenly sending the summons to the wrong party. Wooten and Annona assert that the applicability of the savings statute depends upon actual notice to the defendants. We agree. Further, they insist that by serving an improper defendant and waiting nearly a year to issue process for the correct parties, Ke lly did not act diligently in providing notice of the action. However, in the present case we find that Wooten and Annona had actual notice of the pending suit. We rely on the Tennessee Supreme Court’s decision in the case of Henley v. Cobb , 916 S.W.2d 915 (Tenn. 1996). Although Henley dealt with the filin g of a lawsuit in an improper venue, the Court’s analysis of the savings statute’s notice requirement appears applicable to the

case at bar. Ne

gligence of the pa

rty filing the lawsu

it was declared n

ot to have an effect on application of the savings statute. 4 Id . at 917. The Court in Henley stated:6

If, then, the negligence of the party in suffering the adverse judgment is not the test of the saving statute’s applicability, but has been merely mentioned in dicta, what is the test? A closer reading of our cases reveals that notice to the party affected is the true test of the [saving] statute’s applicability. . . . [T]he crucial consideration was not the technical form of the first action, but the fact that the defendant actually had notice of it. . . . Id. (citing Burns v. People’s Tel. & Tel. Co. , 161 Tenn. 382, 33 S.W.2d 76 (1930)). On September 22, 1995, Dan Duvall, a senior claims adjuster for Houston General, mailed a letter to Kelly’s attorney. This letter was in response to the receipt of a summons and complaint in the original action. Duvall copied the letter to both Wooten and Annona Manufacturing. We find that appellees received actual notice of Kelly’s suit in the letter Duvall sent to Kelly ’s attorney on Sep tember 22, 1995. I

n this letter Duval

l declared: “Thi

s will acknowledge receipt of your September 13, 1995 letter with which you transmitted the Summons and Complaint i n Civil Action No. 317 1, styled Chester R. Kelly v. Jerry R. Wooten, Annona Ma

nufacturing, an

d Houston Genera

l Insurance Compa

ny, which is currently pending in the Circuit Court of Haywood County, Tennessee.” It can hardly be argued that Wooten and Annona Manufacturing did not have notice that a suit against them was pending. In fact, both parties had notice not only that an action was pending, but in what county and what court the action was brought. The parties even had the docket number of the

case. Because both defendants had actual notice of Kelly’s claims against them, we cannot agree that the plaintiff’s failure to issue process on the correct parties precludes application of the savings statute. Ke

lly filed a nonsuit w

ithin a year of init

iating the action,

and subsequently refiled his suit within the time allowed. Kelly also urges this Court to find that the filing of his lawsuit satisfies Tenn. R. Civ. P. 3.

The 1995 version o

f Rule 3 provides a

s follows: 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 retur

ned served or uns

erved. If proc

ess remains unissu

ed for thirty (30)

days or is not served or is not returned withing thirty (30) days from issuance, regardless of the reason, the plaintiff cannot rely upon the original commencement to toll the running of the statute of limitations unless the

plaintiff continue

s the action by obta

ining issuance of n

ew process within one (1) yea

r from issuance o

f the previous pro

cess or, if no proc

ess is issued, within one year of the f

iling of the complai

nt and summons. Tenn. R. Civ. P. 3. Kelly timely filed his original lawsuit on August 17, 1995, well within the one-year statute of5 As stated earlier in this opinion, Wooten and Annona raised the contention at oral

argument that pro

cess was not issue

d on August 16, 1996.

However, the re

cord is inconclusive to that assertion.

6 T.R.C.P. was revised in 1991 to require written notice of the nonsuit and service of a copy of the compla

int on the other par

ties. 7 limitations provided by Tennessee law. Service of process on the out-of-state defendants was attempted; howeve

r, Kelly mistakenl

y served the wron

g party. Theref

ore, under Tenn. R. Civ. P. 3, in effect at the time, Kelly had until August 16, 1996 to reissue process upon Wooten and Annona. On August 16, 1996, Kelly dismissed the original complaint and filed a new complaint wi

th the Haywood Coun

ty Circuit Court. Both

complaints stated t

he same cause of action.

The only differe

nce was that Hous

ton General was d

ropped as a defe

ndant. Wooten and Annona urge this Court to disregard Kelly’s claim that the filing of the new lawsuit and issuance of process constituted issuance of “new process” under Rule 3. Further, they urge us to conclude that Kelly did not have the “option of filing a new lawsuit.” Instead, they contend that Kelly could only fall under the protection of Rule 3 if he obtain new process on the or

iginal claim. We respectfully disagree with these assertions. Kelly filed a lawsuit on August 16, 1996 essentially identical to his original suit. Process was issued at that time. 5 To declare that the issuance of process on August 16, 1996 does not fall under Rule 3 would be to approve form over substance. In Henley v. Cobb , 916 S.W.2d 915 (Tenn. 1996) our Supreme Court said: Within recent ye

ars our Court, as w

ell as the Courts of

last resort in othe

r States, has paid more attention to the basic and intrinsic rights of the parties than it has to form, doing justice between the parties in administering the spirit of the law instead of the cold letter of the law. .

. . 916 S.W.2d at 916-917 (quoting General Accident Fi re & Life Assur. Corp. v

. Kirkland , 210 Tenn. 39, 43, 356 S.W.2d 283, 285 (Tenn. 1962)). Relying on the spirit of Rule 3, we hold that Kelly’s second lawsuit, filed on August 16, 1996, is not time barred and may proceed. Finally, Wooten and Annona correctly state that Tenn. R. Civ. P. 41.01 requires the nonsuiting party to serve the opposing party with the complaint. They further suggest that failure to serve the complaint on the Appellees renders Kelly’s nonsuit void. We disagree. Wooten and Annona cite no case law, and we can find none, that supports their conclusion. Instead, we look to the Advisory Commission Comments from 1991. 6 “Such a requirement8 helps cure the injustice of a plaintiff filing a complaint and summons under Rule 3 and immediately taking

a nonsuit. If the sa

ving statute applie

s, the plaintiff wo

uld get the benefi

t of tolling a statute

of limitations withou

t the defendant kn

owing of any litigat

ion.” Tenn. R. Civ. P., 41.01, Adviso

ry Committee Comment t o 1991 amendment. It appears that notice is the primary reason for the 1991 added requirements of Rule 41.01. Since we have pr

eviously determin

ed that both defen

dants had actual n

otice of the lawsu

it against them, we hold that while Kelly may have technically violated the cold letter of the rule defendants were not prejudiced. The judgment of the trial court is reversed, and this case is remanded for such further proceedings as ma

y be necessary.

Costs of the appea

l are assessed a

gainst the appelle

es.

_________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S. CONCUR:

____________________________________ ALAN E. HIGHERS, JUDGE

____________________________________ HERSCHEL P. FRANKS, JU DGE