# FILED September 23, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT JACKS ON

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

/Appella nt. ) ) VS. ) C.A. No. 02A01-9511-CV-00263 ) ROBERT BOURNE, M.D., et al , ) ) Defend ants/Appe

llees. )

______________________________________________________________________________ From the Circuit Court of Benton County at Camden. Honorable Julian P. Guinn, Judge
Robert G. Gilder , Southaven, Mississippi L. Anne Jackson , Southaven, Mississippi Attorney s for Plain

tiff/App ellant. Marty R . Phillips , RAINEY, KI ZER, BUTLER, REVI

ERE & BELL , P.L.C., Jackson, TN Attorney for D efendants/Appellees Robert Bourne, M.D. and Agustin Vitualla, M.D. Michael E.

Evans , EVANS & TODD, Nashville, Tennessee Attorney for D efendant/Appellee Medco Drug s, Inc. Floyd S. F

lippin , ADAMS, RYAL & FL IPPIN, H umboldt, Tennessee Attorney for D efendant/Appellee David Berg er, M.D. C. J. Gideon, Jr., John T. Reese, GIDEON & WISEMAN, Nashville, Tennessee Attorneys for D efendant/Appellee Jon Winter, D.O. Rebecca Adelman , GLASSMAN, JETER, EDWARDS & WADE, P.C., Memphis, Tennessee Attorney for Def endant/A ppellee Robert L . Horton, Jr., D.D.S. David A. Lufkin , LUFKI N & HENLEY, Knoxville, Tennessee Attorney for D efendant/Appellee Rite Aid of Tennessee, I nc. Catherine B. Clayton , Jackson, Tennessee Attorney for D efendant/Appellee Wal-Mart Stores, I nc. John S. Littl e , Jackson, Tennessee Attorney for D efendant/Appellee Fry Drug Company , Inc. Lela M. Hollabaugh , MANIER, HEROD, HOL LABAUGH &

SMITH, Nashville, Tennessee Attorney for D efendants/Appellees Paul Melton d/b/a Melton’s Pharmacy and Fred’s Stores of Tennessee, Inc . d/b/a Fred’s Tom Corts , ORTALE, KEL LEY, HERBERT & CRAWFORD, Nashville, Te nnessee Atto rney for Def endan t/Ap pelle e Hernd on Dru gs
OPINI ON FIL

ED: AFFI RMED AND

REMANDED FARMER, J. CRAWF ORD, P. J., W.S. : (Concur s) LILLARD, J. : (Concur s)This is an appeal from the trial court’s orders dismissing Wesley Cary’s complaint agains tvarious health care providers for their allege d contribution to the breakup of his mar

riage to Linda K. Cary. Wesley

Cary (her einafter, “Cary”or “Mr. Cary ”) alleged that the marriage had been irreco ncilably

broken due to his wife’s prescription drug addiction, which he alleged was a re sult of the over prescription of drugs and overf illing of prescriptions by

the defendants. We affirm the trial court’s decision.

FACTS

Wesley Cary and L

indaCary(hereinafter, “Ms. Cary ”), were married in 1968, and residedin Camden, Benton County, Tenne ssee, throughout their marriage
. On May 24, 1994, the parties separated. Prior to their separation, it is undisputed that the parties had been estranged. As early as November, 1991, Cary had told Robert Bourne, M.D. that he and Ms. Cary had been having
ma rital di ff

ic ul ti es . T he Ca rys ’ p ro bl em s e xa ce rb at ed ov er th e ye ar s t o t he po in t t ha t t he y t oo k separa te vacatio ns and ha

d separa te bank a ccounts. Ms. Cary filed for divor ce in the Chancery

Court of Benton County in September, 1994. In his answer and counte r-complaint for divorce, Mr. Cary stated that Ms. Cary “bec ame addicted to various prescription drugs and pr escr i ption medications for a long period of time prior to the final separation of t he parti es” and t hat she ha

d denied h

im conjugal rights “for a long period of time prior to the se paration.” While the termination of the marri age is not the subject of the instant proceeding, it is relevant to the issues raised in this cause.

On May 26, 1994, Cary

learned from

Robert Borne, M.D., that Linda Cary had for

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

vit filed in the trial court that he had no knowledge of his wife’ s addictio n prior to May 26, 1994, and could not have known of it until that time. C ary furth er stated that until May 26, 1994, he ha d “absolut ely no i de a that the drastic change in my wife’s behavior and attitude had any thing to do withdrugs. ” After

his meetin g with Dr . Bourne , Cary began an invest

i gation into h is wife’s prescription drug addi ction. Th e results of the investigation revealed that Ms. Cary had obtained many prescriptions from a number of phy sicians and dentists and had them filled at several pharmac ies.1 The trial court entered orders of voluntary non-suit as to defendants City Drug Company, D & K, I

nc., Pharmaceutical Services, I nc., and Robert Walker.
2 Medco filed a motion for judgment on the pleadings. Pursuant to Rule 12.03 T.R.C.P., “[i]f, on motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be trea ted as one for summary

judgment . . . .” On May 3, 1995, Cary

filed a complaint for medical malpractice in the Circuit Court of Be nt on Co un ty. In the c omplaint, C ary named asdefenda

nts: Rober

t Bourne , M.D., Da

vid Berger, M.D., Jon Winter, D.O., Agustin Vitualla, M.D., Robert L. Horton, Jr., D.D.S., Rober t W a lker, D.D.S., Rite-Aid Pharmacy #1402, Wal-Mar t Pharmacy, Medc o Drugs, Inc., F ry Drug Co mp an y, Paul Melton d/b/a Mel ton’s Ph ar ma cy, Herndon Drug Co mp an y, Pharmaceutical Servi ces, D a nd K, Inc ., an d C it y Dr ug Co mp an y. 1 No summons w ere filed with th e or igi nal com pl ain t. In the complaint, Cary asser ted that his marriage had been “irr econcilably br

oken as a direct and p rox imate

result of his spouse, Linda Kay Cary’s pre scription drug addiction.” Cary ’s cause of action arises so lely

from the a

lleged terminat ion of his ma

rriag e; howev er, at no

time has Linda K. Cary been a party to t he ins tant p roceed ing.

On May 30, 1995, Cary

filed an amend ed com plain t but did n ot all ege any additional
causes of action. Cary a

ttached to the amended complaint summons as to all Defendants. Also on May30, 1995, the

circuit c ourt cle

rk issued said summon s to all def endants e xcept Ri te-Ai d Pharmacy. The

summons as to Rite-Aid Pharmacy was issued subseque ntly on July

19, 1995.

The trial court granted summary judgment in favor of the remaining De fendants and Plaintiff appeals
. 2 Revie w of t he trial c ourt’s decision on a motion for

summary judgmen t is de
novo . No presumption or correctness attaches to the trial court’s disposition. The Court must review the evide nce in the light most favorable to the nonmoving party and must also draw all reas onable inferences in the nonmoving party’ s favor. Byrd v. Ha ll , 847 S.W.2d 208, 210-211 (Tenn. 1993). Courts should grant summary judg ment only when both the facts and the conc lusions to be drawn from them permit a reasonable person to reac h but one conclusion. Byrd , 847 S.W.2d 208.

ISSUES
On appea l, the par ties have raised th e following issue s:I. Does Tenn esse e rec ogni ze a cause of action for termination of a marriage? II. Whether the trial court correc tly gra

nted summary judgment on the basis that Plaintiff’s cause of action f or loss of consortiumresulting

from his wife’s addic tion to pre scrip tion drugs was time barred by

the one-y ear sta

tute of limitations codified at T.C.A. § 29-20-116. III. Whether the statute of limitations begins to run up on discovery of the

addiction or upon discovery of the cause of action.
Appellee Rite-Aid o f Tenne ssee, I nc., hasraised th

e following issue s:

IV. Whether Rite-Aid of Tennessee, I nc., was ever named as a defendant in either the

origina l or any amended complain t. V. Whether

Plaintiff commenc ed the action aga inst Rite-A

id of Tenness ee, I

nc., with in the one ye ar statut

e of lim itat ions period after Plai ntiff admit s that he had full k nowle dge of his cla ims aga inst all defe ndants.
Appellees Bourne and Vitualla have ra ised the following issue:

VI. Did the trial court corr ectly g rant summary judgment as to Drs. Bourneand Vitualla because the undisputed expert testimony shows that Drs. Bourne and Vitualla met the recognized standard of accept able professional practice required of them an d did not ca use any injury to Plaintiff?
Appellee Robert L. Horton, D.D.S. has r aised the following issue:

VII. Whether Plaintiff’s appeal is frivolous and wa rrants imposition o f an awa

rd of damages.

STANDARD OF CARE

We will address first the issue as presented by Doctors and Vitualla. They asser t that the trial court was correct in its holding because the undisputed expert evidence established that they had met the recog

nized stan dard of a

ccepta ble prof essional practic e requir

ed of the m.In medical malpractice actions, there is no presumption of negligence on the par t of the defe ndant. T. C.A. § 29- 26-115(c ) (1980) providesin relev ant part :

In a malpractice action as described in subsection (a) of this section there shall be no presumption of negligence on the pa r t of t he defenda nt.

T.C.A. § 29-26-115(a) sets forth the burden of proof whic h the plaintiff

must estab lish to main

tain a medica l malpractice cla

im. That section stat

es:
(a) In a malpractice

action, the claimant shall havethe burde n of proving by e

vidence as provided in subsection (b): (1) The recognized standard of acc ep tab le professional practice in the profession and the s pecialty there of, if any, that the de fendan tpractices in the community in whic h he practices or in a similarcommunity at the time the alleg ed injury or wrong ful action occurred; (2) That the defendant acted with less than or failed to act withordinary

and rea sonable

care in accordance with such standard; and (3) As a proxima

te resu lt of the defendant’s neglige nt act or omission, the plaintiff suffer ed injurie s which wo

uld not othe

rwise have occurred.

As provided by T .C.A. § 29- 26-115(d ), the bur den of pr oof in a medica l malpractice ac tion restswith the plaintiff.

This Court ha s held that negligence and ca usation in medical mal practice actions mus t be proved by compe

tent expertmedical testimony. Stokes v. L eung , 651 S.W.2d 704, 706 (Tenn. App. 1982 ). In

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

No person in a health care profession requiring licensure under the laws of th is state sh all be compe

tent to testify

in any court of law to establish the facts re

quired to be estab lished by

subsecti on (a) un

less he was licensed to practice in the stat e or a cont iguous b orderin g state a profession or specialty

whi ch would make his expert testimony relevant to the issue s in the case and had practiced this profession or special ty in one of these states during the y ear preceding the

date that the alleged injury

or wrongful act occurre d.

In support of their moti ons for su

mmary judgmen t, both Dr. Bourne

and Dr. Vituallatestified by a ffidavit that they fully complied withthe recognized standard of acc eptable professional practice required of them

in all of their care and treatment of Ms. Cary. I

n addition, Dr. Bourne and Dr. Vitualla each

stated in t heir af fidavits t hat they did not ca

use or contribute to any injury to either Mr. Cary or Ms. Cary. A def

endant physician may

rely upon his aff

idavit in support of a motion for summary judgment. Smith v. Graves , 67 2 S.W.2 d 787, 790 (Tenn. App. 1984). In Bowman v. Henard , 547 S.W.2d 527 (Tenn. 1977), our supreme court held:

In summary we hold that, in those malprac tice ac tions wher

ein expertmedical t

estim ony is required to esta blish negligence and proxim ate cause, affidavits by medical doctors which clearly and comple tely

refute plaintiff’s contention afford a prope r basis for dismissal of the action on summa ry judgmen t, in th e absence of proper responsive proof by affidavit or otherwise.

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

to rebut the motion for summa

ry judgmen t filed by Drs. Bou rne and V itualla. T he Tenne ssee Supr

eme Court

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

Once it is shown b y the movin g party tha t there is no genuine issue of material fact, the nonmoving party must then demonstrate, by affida vits or discovery ma

terials, that

there is a genuine, material fact dispute to warrant a trial. . . . In thi s regard, Rule 56.05 provides that the nonmoving party c annot simply rely upon his pleadings but

must set forth specific facts showing that there is a genuine issue of material fact for trial. “If he does not so respond, summar y judgment . . . shall be entered against him.” Rule 56.05.
Byrd , 847 S.W.2d at 211 (emphasis in original).

Cary failed to present

any compete

nt experttestimony whatsoever to contr overt Dr. Bourne’s and Dr. Vitualla’s testimony concerning the recognized standard of professional pra ctice and causati on requir

ed by T.C.A. § 29 -26-115( a). The refore , we find

that the tr

ia l court pr

operly granted summary judgme

ntin favor of Dr. Bourne and Dr. Vitualla, a nd we affirm thetrial court’s decision in this regard.

STATUTE OF LIMITATIONSSince the alleged n eg ligence underly ing this cause of action is for medical malpractice, the appli cable st atute of limita tions is on e y ear. T. C.A. § 29- 26-116(a )(1) pr ovides: “The statute of limitations in malpractice actions shall be one (1) y ear as set forth in § 28-3-104.” Cary filed a complaint in this cause on May 3, 1995; however, such action, by itself, is insufficient to commence a cause of action under Rule 3, Te nn. R. Civ. P. The r ule previously provided that “[a]ll civil actions are commenced by filing a complaint with the Court.” In Hine v. Commercial Carriers, Inc. , 802 S.W.2d 218 (Tenn. 1990), a complaint was filed on March 15, 1989, within the period prescribed by

the statute of

limitations. However, a summons was not issued until more than two months after the statute had expired. In reversing the trial court’s dismissal, the supreme court noted that Rule 4.01 T.R.C.P. provided that “upon the filing of the complaint the clerk of the court wherein the compl aint is filed shall fo rthwith issue the required summons . . . .” The court went on to state th at:
First, Rule 3 cle arly state s that

“[a]n action is commenced within the meaning of any

statute of limitations upon such filing of a complaint , whether process be returned served or unserved.” (emphasis added). If the drafters of the r

ule intended

a compla

int and summons to commence an action for

statute of limitati on purpos es, the r ule could h ave easily been dr

afted to so indicate. As it is, howeve r, Rule 3 speaks in terms of a complai nt and the st atute of limitations , regar dless of process. It adds no other r equirement for commencing an ac ti on . R ul e 4 .0 1, de al in g w it h t he is su an ce of a s um mo ns , s ays nothing abo ut th e st atu te o f li mi tat io ns. It should be noted, however, that the language in R

ul e 3 indica

tive of tim

e constr aints spe aks to keeping process in an active mode, but is not instructive on when a summons must

be issued relative to the fili ng of the

complain t.

Hine , 802 S.W.2d a

t 219- 20. The court held that a summons need not necessarily be issued simultane ously

with the fi ling of a complaint in order for the complaint to toll the statute of limitations
. Rather, the summons must be issued “forthwith,” which the court co nstrued to mean within a reaso nable time

after the complaint is filed. Thecase was remanded to the trial court for
a determin ation of w

hether o r not the c omplaint w as issued within a reasonable time. However, Rule 3 was subs equently

amended and at all times her

e pertinent state s:

All civil act ions are commence

d by filing a complaint and

summons with the clerk

of the cour

t . An action is commenc ed 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 processbe returned

served or unserved. If proc ess remains unissued3 Effective July 1, 1997 Rule 3 is amended to dele te the words “and summons.” The advisory commission

comment n otes that d

eletion o f the re quireme

nt of filin g a summo ns in addition to

a compla int retur ns the re quireme

nt for co mmenceme

nt to pre- 1992 statu s. for 30 day s or is not se rved or is not returned within 30 day s from issuance, regardless of the reason, the pla intiff cannot rely upon the original commencement to toll the running of a statute of limitations

. . . . 3 (Emphasis added.)
While Cary filed the original complaint on May 3, 1995, he did not file at that time a summons as required by Rule 3. The rec ord reveals that it was not until May 30, 1995, when Cary f i led the amended complain

t, that all summons we

re filed . The tria

l court c lerk issue

d summons a s to all defenda nts except Rite-Aid Pharmacy on Ma y 30, 1995. The summons as to Ri te -A id Ph ar ma cy, while filed with the 5/30/95 amended complaint, was not issued by the trial court clerk

until July 19, 1995. It appears to the

Court that the action was commenced on May 30, 1995, the date the amended complaint and summons were filed and the date the summons were issued. Theref ore, the action is barred by the one yea

r statute of limitations applicable to medical malpractice claims.
Appellant asserts that he should not be required to file a lawsuit pr ior to his knowl edge of his injury. I n support of this assertion, Appellan t cites Tenn essee case law which holds that the statute of

limitationsdoes not st

art to run until the cause of the injury is discovered or should have be en discov ered and the iden tity of the tort-feasor is known or should have been known. See McCrosky v. Bryant Ai rConditioning Co. , 524 S.W.2d 487 (Ten n. 1974); Teeters v. Currey , 518 S.W.2d 512 (Ten

n. 1974). Howeve

r, these cases a ddress situationsin which th e plaintif fs could nothave disc overed t

he cause s of actio n within ad equate t ime to brin g a timely

action. Cary

relies upon Gilbert v. Jones , 523 S.W.2d 2 11 (Tenn . 1974), f or the pr oposition th at the disc overy rule should apply to toll the statut

e of limitations until such time as the defendants are identified. Ho we ve r, as no te d b y Webber v . Union Carbid

e Corp ., 653 S.W.2d 409, 412 (Tenn. App. 1983),

There is nothin g in Gi lbert to sugg est, howe

ver, tha t the statu

te should have been

tolled until the plaintiff could identify as defe ndants the manuf

acture rs of spe cific ing

redient s or substa

nces con tained in the contraceptives. Once the contrace ptives were recognized as the cause of the illness, the cause of action acc rued.

Webber , 653 S.W.2d at 412.The dis covery rule cod ified at T .C.A. § 29- 26-116(a )(2) sta tes: “I n the eve nt th e alleged injury is not discovered

within the said one (1) ye ar period, the period of limitation shall be
one (1) yea

r from the date of such discovery .” As held by our supr eme court in Roe v. Jefferson , 875 S.W.2d 65 3 (Tenn. 1994), the discover y r ules appl ies:
[O]nly in cases where p laintiff

does not di scover a

nd reaso nably could notbe expected to discover that he has a right of action. . . . the statute is tolled on ly during the pe riod when the plaintiff has no knowl edge at all that a wrong has oc curred, and, as a reasona ble person is not put on inquiry.

Roe , 875 S.W.2 d at 656-57 (quot ing Hoffman v. Hospital Affiliates, Inc., 652 S.W.2d 341, 344 (Tenn. 1983)). The Roe court noted that a plaintiff need not actually know that the injury

constitutes
a breach of the ap propria te lega l standar d in order to

discover that he ha s a

right of action. Instea

d, the plaintiff is deemedto have discovered the right of action if he is aware of facts sufficie nt to put
a reasonable person on notice that he has suffered an injury as a result of wrongful conduct. Id . at 657. Furthermore, the

supreme court held in Carvell

v. B otto ms , 900 S.W.2d 23, 29 (Tenn. 1995), that a plaintiff need not have the advice of a pr ofessional regarding a possible c ause of a cti on in order for the statute of limitations to accrue.

In R oberts v. Berry , 541 F.2d 602 (6th Cir. 1976), the Sixth Circuit, applying Tennessee law to a loss of consortium claim, held that the statute of limitationsbegins t

o run when the consortium is lost and not when the tortious conduct is discovered. Roberts , 541 F.2d at 610. The Supreme Court noted that loss of consortium is a gradual injury and the s tatute of limitations begins to run whe

n the husba

nd knows or

should have kn own of the errant conduct by his wife. Broidioi v. Hall , 218 S.W.2d 737, 738 (Tenn 1949). In the instant case, it is not known when the consortium was lost, but it is clear it was sometime before May 26, 1994.

Examination of the record filed in this Courtleads to the conclusion that Appellant knew of the existence of a cause of action no later than May

26, 1994. The amended complaint filed May 30, 1995, s tated tha

t Cary “learned of the se acts of malpractice in the latter part of May , 1994.” In a subsequ ent aff

idavit fil ed Augu st 30, 1 995, Cary stated that he disc overed the alleged
ma lpractice on Ma y 26, 1994, when he me t with Dr. Bourne. After that meeting, Cary began aninvestigation into Mrs. Cary’s presc ription rec ord s. In the separate divorce procee ding, Cary filed
a counterclaim on September 30, 1994, in which he stated under oath that the Carys’ f

inal separation occurred on May 24, 1994. In that pleading, Cary stated that Ms. Cary had de nied him his conjugal rights “for a long period

of time prior to the final separation.” Furthermore, it is evident from Dr. Bourne’s affidavit filed August 23, 1995, that the Carys had been having maritaldifficulties before May 24, 1994. Mr. Cary had infor med Bourne of the situation as early as November, 1991, an d Bourne was aware that the Cary ’s had taken separate vacations and maintained s eparat e checking accounts prior to their separation.

On October 16, 1995, Cary filed a supple mental affidavit in which he stated that he knew about his wife’ drug addiction by May 26, 1994, when Dr. Bourne met with Cary and showed him the prescriptions that Ms. Cary ha d altered, but Cary

stated he did not know about the doctors’ and pharmacies’ alleged malpra ctice until June 20, 1994, when he had completed his investigation into his wife’ s prescr

iption rec ords. It is undeniable that Cary had stated in previous affidavits and plead ings that he knew about the alleged malpractice as of May 26, 1994. Therefore, t

he Court questions the probative value of Cary’s inconsistent statements. See Price v. Becker , 812 S.W.2d 597, 598 (Tenn. App. 1991) (two sworn inconsistent statements by a party ar e of no probative value in est a blishing a disputed issue of material fact). I n spite of these inconsistencies, the evidence containedin the record before this Court points to May 26, 1994, as the date on which the statute of limitations began to run.

On May 26, 1994, Cary

knew that he and his wife had separated two day s earlier on May 24, and he admitted that they ha d not had conjugal relations for a long period of time before the separation. He knew f

rom the meeting with Dr. Bourne that Ms. Cary was addicted to drugs as evidenced

by the fact that she had altered prescriptions in order to obtain them. Furthermore, Cary had admitted that the couple had been having extreme difficulties as early as November, 1991, that they took s eparate vacations and maintained separ ate checking accounts. Cary even stated in a pleading filed in

this cause that he knew about the alleged wr ongful acts of the defendants by May 26, 1994, and it is undisputed that as a result of the May 26, 1994, meeting between Dr. Bourne and Mr. Cary that Cary immediate

ly b egan a

n investig ation into h

is wife’ s prescr

iption rec ords.Contrary to the argument advanced in Cary ’s brief, we do not find that by adopting the appellees’ position regarding the a ccrual of the statute of limitations period, that Cary would have be en required to file suit on May 26, 1994. Nonethele ss, we conclude that the one y ear statute of limitations provided by T.C.A. § 29-26-116( a)(1) (1996) began to run on May 26, 1994. As our supreme court stated in Roe v. Jefferson , 875 S.W.2d 653 (Tenn. 1994):

It is not required that the pl aint iff actually know that the injury cons titutes a breach of the appropriate leg al standard in orde r t o discover that he has a “right of action”; the plaintiff is deemed to have discovered

the right of act

ion if he is aware of facts sufficient to put a reasonable person on notice that he has suffe redan injury

as a result of wrongful conduct.

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

It is evident that the cause of action accrued on or before May 26, 1994, and the statute of limitat i ons expired on May 26, 1995. Cary admitted that he knew of his wife’s alleged drug addiction by May

26, 1994, and that he and his wife had been separated on May

24, 1994. Cary
was on inqui ry

noti ce on or b efore M ay

26, 1994, a

nd his fai lure to pr

operly commenc e a lawsu

it within one yea r of that date bars the instant action. Therefore, we affirm the trial court’s dismissal of the caus e on the basis that the statute of limitations had expired before Cary commenced the procee dings on

May 30, 1995, w

hen he fi led the su

mmons and a

mended c omplaint.

TERMINATI ON OF MARRIAGE
Cary allege s that the d

efenda nts caused h

is wife to become addicted to prescription drugs, which in tu

rn led to the termination of the marriage. L inda Cary is not a par

ty to the instant proceeding. Instead, Cary ’s claims arise solely f rom the termination of his marriage.

Tennes see does not recognize a cause of action for termination of a marriage. Fo rm er ly, Tennessee recognized two cause s of action related to inte rference with the marital relationship: (1) criminal conversation and (2) alienation of affections. Lentz v. Baker , 792 S.W.2d 71, 73 (Tenn. App. 1989). All causes of action for termination of a marriage have

been abolishedin Tennessee.

In 19 89 , t he Te nn es se e G en er al As se mb ly a bo lished the tort of alienation of

affec tions. Specifically, T.C.A. § 36-3- 701 (1996) states: “Th e c ommon law tort action of alienation of affec tions is her

eby abolishe d.” Alien ation of a ffectio ns has bee

n defin ed as “ willful and malicious interference with the marri age relation by a third pa rty, without justification or excuse.” Dupuis v. Hand , 814 S.W.2d 340, 343 (Tenn. 1991) (quot ing Donnell v. Donnell , 415 S.W.2d 127, 132 (Tenn. 1967)). The Tennessee Supre me Court in Dupuis abolished the common law tort for alienation of affections. Id . at 346.

Si mi la rl y, the Tennessee General Assembly

and Supreme Court

also have abolished the to rt of criminal conversation. In 1990, the general assembly

enacted T.C.A. § 39-13-5 08(a ) (1991) which states in relevant part: “On or after January

1, 1991, no cause of action shall be maintained that is bas ed upon the common l aw torts of seduction or criminal conversation, and such torts are hereby

abolished.” In Hanover

v. Ruch , 809 S.W.2d 893 (Tenn. 1991), the supreme court abolished the common law tort of criminal conversation. Hanover , 809 S.W.2d at 898.

In his co mplai nt, C ary alleged the fo llow ing:

The actions a

nd conduct of here

in listed D efenda

nts constit uted a neglig ent, gross, wilful, wanton and total disregard for L inda Kay Cary’s health and welfare. As a direct a nd prox imate r esult of the actions of t h e Defe

ndants, We sley

Cary ’s marri age ha s become irreco ncilably

b ro ken. Until the drug addiction, Plaintiff, Wesley Ca ry, and Linda Kay

Cary had ha

d a comple

tely normal, productive, harmonious relationship as husband and wife, and but for this breach o f the acceptable standards of profe ssional care, would have bee n abl e to continu e these r

elationsh ips.

Examination of Cary’s c omplaint reveals that it is based on the tort of alienation of affec tions. Tennes see do es not recogn ize this cause of action for interferenc e with a marriage, regar dless of whether the interference is intentional or ne gligent . Accordi ngly , Cary has failed to state a claim upon which relief may be granted.
Cary asserts that

his claim constitutes loss of consortium with his wife. Regar dlessof

the name appended to the claim, it is still a claim for alienation of affections. The supreme court noted in Dupuis , “[t]he g ist o f the alienati on of affections tort is the loss of consortium . . . .” Dupuis , 814 S .W.2 d at 34 3 (quo ting Ke lley v. Jones , 675 S.W.2d 189, 190 (Tenn. App. 1984)). Re ce nt ly, the Tennessee Supreme Court addressed the compa

rative f ault aspects of a c laim for l oss of consortium in Tuggle v. Allright Parking Systems, Inc. , 922 S.W.2d 105 (Tenn. 1996). In that
c ase, the court noted that, while the claim for loss of consortium is a claim independent from tha t of the injured spouse f

or other damage s, it is also a

derivative claim in that the physic al injuries or incapa citi es of one’s spouse give rise to and establish the claim. Tuggle , 922 S.W.2d at 108, see also, Jackson v. Miller , 776 S.W.2d 115, 117 (Tenn. A pp. 1979) ; Swafford v. City of Chattanooga , 743 S.W.2d 174, 178 (Tenn. App. 1987).

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

recognize a different and indepe ndent cause of action for loss of consortium. The court held:

In contrast to the Tenness ee approach, a small number of

jurisdictions view a claim for loss of consortium as an es sent ially different and independent cause of action from the physically

injured spouse.
Tuggle , 922 S.W.2d at 108. (Emphasis added.) The supreme court further held that, in states such
as Tennessee which follow the majority approach, a claim for loss of consortium is regarded as derivative of the pr

incipal c laim for i njuries. Rely ing on the Hawaii Supreme Court’s decision in Mist v. Westin Hotels, Inc. , 738 P.2d 85, 90, (Haw. 1987), the Tennessee Supreme Court stated:

[T]here must

be a tort which g ives rise

to a cause

of actio n that must be maintained by t he [p hys ic al ly] injured spouse in order for the noninjured spouse to claim a loss of consortium. In other words, the loss of co ns or ti um cl ai m i s d ep en de nt up on th e n eg li ge nt in ju ry of th e other spouse who has the primary tort cause of action.

Id. at 109.

Other jurisdictions whic h have a ddresse d this situa

tion have decline d to permit a part

yto circumvent an abolished tort by artful drafting. I

n Koe st ler v. Pol

land , 471 N.W.2d

7 (Wis. 1991), the plain

tiff file d a suit fo

r intenti onal infli cti on of emotional distress arising from the defendant’s adulter

ous affa ir with and impregnation of the plaintiff’s wife. Under Wisconsin law,
a cause of action for intentional infliction of emotiona l distressis an inde

pendentl y vi able cla

imfor which recovery

may be had. H owever, i n addre ssing the case, the Wisconsin Supreme Court observed that plaintiff’s claim was really one f or criminal conversation which had been abolished. Koestler , 471 N.W.2d a

t 9. There

fore, the court d

id not per

mit th e defendant to recover for a n otherwis e viable c laim beca use to do so

would unde

rmine the sta te s tatute abolishing criminal conversation. Id . at 10. Similarly, in Schief fer v. Catholic Arc

hdiocese of Omaha , 508 N.W.2d 907 (Neb. 1993), the Nebraska Supreme Court affirmed the dismissal of a loss of consorti um claim because it was essentially a cla

im for criminal conversation and alienation of affections. Those torts had been abolished by

state statute; therefore, a cause of a ction did not exist. Schieffer , 508 N.W.2d at 912. See also, S

peer v. D ealy , 495 N.W.2d 911, 913 (Neb. 1993).

In th e i ns ta nt pr oc ee di ng , C ar y c annot la be l a s l os s o f c on so rt iu m w ha t i s r ea ll y a claim for alienation of affections because that tort has been abolished in Tennessee by both the general assembly and the supre

me court. Cary

has failed to state a

cause of action upon which relief may be g ranted.

As noted, Tuggle cited the holding in Mist . We have not addressed the question of whether the injured spouse must maintain their cause of action in order for the non-injuredspouse to claim a loss of co nsortium a s that issue is not bef ore us.

CLAIMS AG

AINST RITE- AID

Rite-Aid of Tennessee, Inc . asserts that it was never pr operly named asa party

to this action. The comp laint name s Rite-Aid Pharmac y #1 402 as a d

efenda nt, but t hat entity was not served with process. Instead, the re gistered agent for Rite-Aid of Tennessee, Inc., t he c orrect
co rp or at e p ar ty, was served with process on August 1, 1995. Simply stated, th e named d

efenda nt, Rite-Aid Pharmacy

#1402, was never served in this matter, and the c orrect corpora te party , Rite-Aidof

Tennessee, Inc ., was ser ved but never named as a party in either the original or amended complaints. Therefore, no action was commence d against Rite-Aid of Tennessee, I nc.

Even if the Court were to ignore the procedur al irre gulari t ies as to the named defenda nt, it is apparent from

the foregoing analy sis that the cause of action was not commenced timely as to any def

endants, including Rite-Aid. Rite -Aid asserts that its summons was not filed until July 19, 1995, which was also the date it was issued by the trial court clerk. That proposition is notsupported by the record on appeal, and Rite-Aid does not offer any contrar y pr oof. While

it is undeniable that

the trial court cl erk issue d the summo ns as to Rite -Aid on July 19, 1995, the record
on appeal indicates that all summons, including Rite-Aid’s, were filed with the amended complaint
on May 30, 1995. Nonethele ss, reg ardless of whether the Rite-Aid summons was filed on May 30
or July 19, the caus e of act

ion was no t commenc ed timely as to Rite- Aid

or to any other defendant
. For the foregoing r

easons, we find that in spite of the procedural irreg ularities concerning the proper namedparty , the cau se of action as to Rite-Aid was not timely commenced within one y ear of the accrual of the cause of action. Ac co rd in gl y, said cla im is time-b arred b y the statute of limitati ons. The trial court’s May

2, 1996, ord

er gra nting sum mary judgmen t in favor of Rite-A

id is affirmed.

FRIVOLOUS APPEAL

In his brief, Robert L. Horton, D.D.S., requested imposition of damages against Cary on the bas is that the appeal is frivolous. After due consideration of this issue, the Court finds that the issue is not well -taken, and the Court decl ines to aw ard said

damage s.

CONCLUSION

For the foregoing reasons, the Court is of the opinion that the orders of the trial court dismissing Mr. Cary’s c laims against the defendants should be and are affirmed. Costs aretaxed to th e p la in ti ff , W es le y Ca ry, fo r w hi ch ex ec ut io n m ay i ss ue if ne ce ss ar y.

____________________________________ FAR MER , J.______________________________

CRAWFORD, P.J., W.S. (Conc urs)

______________________________ LI LL ARD, J. (Conc

urs)