# FILED Nov. 9, 199 5 Cecil Crow son, Jr. Appellate Court Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

NATHANIE

L LILLARDand wife ) PELINDA LILLARD, ) ) Plaintiff s/Appella nts, )

) Davidson C ircuit ) No. 94C- 2716 VS. ) ) Appeal N o. ) 01-A-01- 9506-CV- 00268 RICHARD H. PINCK

LEY a nd ) COURIER PRINTING CO., INC., ) ) Defenda nts/Appell ees. )

APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE THE HONORABLE BARBARA N. HAYNES, JUDGE

For the Plaint iffs/App ellants : For the Def endants/Appellees : Lionel R. Barrett, Jr. Brenda M. Dowdle Nashville, Tennessee Las siter, Tid well & Hildebran d Nashville, Tennessee



## AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE-2- 

## O P I N I O N

This appeal inv olves the

dismissal of a nine-year-old personal injury action stemm ing from acollision between a truck and an automobile that was part of a funeral p rocessio n. The dr iver of the

automobile and his wife fi led suit in th e Circuit Cou rt fo r Dav ids on C oun ty a gainst the owner and driver

of the tru ck. Followingtwo non-sui ts, the pla intiffs f iled their third compl aint more than f ive years after ta

king their f

ir st non-su it. The

trial cour

t granted t

he defenda

nts’ motion for sum mary judgm ent based on the

statute of limit ations. T

he plaintiffs asserton this appeal that the tr ial co urt’s decision is inconsisten t with the “spir

it” of the savings statute as recently const rued by the Tenn essee Supre me Court. We affirm the sum mary judgm ent and als o fin d that thi s appeal is frivolous. Acco rdi ngl y, we rem

and the ca se for

the determination of dam ages for a fr ivolous appeal.

I.

Nathaniel Lillard

was drivi ng in a fune

ral proce ssion on November 25, 1 985 when his automobile was struck by a tr uck owned b y Cour

ier Printing Compa

ny that was b ein g dr ive n by Richard H. Pinckley. M r. Lillard and his wife were inj ured in the collisi on, and the ir autom obile was damaged. On N ovembe r 25, 1986, Mr. Li llard and his wife filed suit against Courier Printing and Mr. Pinckley seeking com

pensatory and punitive

damages.
The Lil lards filed a not

ice of volu ntary

dismis sal on March 10, 1989, and the trial cour

t ente r ed an orde

r on Marc h 22, 1989, dismis sing their c ompla int without prejudice and assessing the costs agai nst them. The Lil lards fil ed their second compl aint on Mar

ch 12, 1990; however, their lawye r filed a second notice of voluntary dismissal on August 20, 1993. The tri al c ourt entered an order dismis sing the com

plaint and t axing the c osts on Augus t 23, 1993.

The Lilla rds filed their third complaint against Courier Printing and Mr. Pinckley on August 22, 1994. Cour ier Printing and Mr. Pinckley filed a pr operly1 The Lillards were ref erring to Cronin v. Howe. The East ern Sect ion held that t he sav ings statute did not apply to medical malpractice actions that were nonsuited and refiled bey ond the three-y ear statute of repose for medical malpractice actions. Cronin v. H

owe , App. No. 03-A-01- 9310-CV-0037 9, 19 T.A.M. 13-8 (Te nn. Ct. App . March 3 , 1994). T he Tenne ssee Supr

eme Courtgranted Ms. Cronin’s application for permission to appeal on June 13, 1994 and hear d oral argum ent on January 3, 1995. On September 5, 1995, the Court he ld that the savi ngs statut e permitted Ms. Cronin

to voluntarily dismiss and then refile her complaint after the expiration of the medical malpractice statute of repose. Cronin v. H owe , App. No. 03-S-01-9406-CV-00053, slip op. at 10-11, 20 T.A.M. 37-3 (Tenn. Sept. 5, 1995) (For Publication).

2 The brief states onpage 18 that “[i]n the ins tant cas e, Ms. Cro nin filed t he suit . . . well within the statute of limitations and the statute of repose.”

3 The brief states on page seven that “[p]laintiffs L illard cannot be d enied the ir righ t to a fair trial simply beca

use their lawfully r

efiled cause of action

fell outsi de the sta

tuteof repose.” In addition, it cites to Tenn. Code Ann. § 29-2 6-116 (1980 ) on pa ge eleve n and a rgues o n page eighteen that “[t]he mere fact that the more restrictive medical malpractice statue of repose e xists does no t n ec es sa ri ly i ndicate thatthe legislature intended to eliminate the rights of medica l malpractice patients.”

-3- supported mot

ion for summar

y judgment asserting that the Lillards’ claim w as time- barred. The Lillards conceded that the existing judicial construct ion of the savings statutesupported the defendants’ motion but asserted that the Tennessee Sup reme Court had h eard arg ument in a case

that w ould o verrule t hese precede nts. 1 The tria

l court gra

nted the sum

mary judgm ent on April 11, 19 95.

II.

We turn first to the brief filed on behalf of the Lillards. The brief i tsel f states that “ [t]he B rief of t he Plaintif

fs/Appel lants in this case is largely identical to the Brie f subm

itted to this Court in the Cronin case, which is pending before the Tennesse e Suprem

e Court. ” The sta

teme nt is sadly c or rect. In fact, the argument section of the Lillards’ brief is essentia

lly a v erbatim

copyof the brief filed with the Eastern Se ction on Ms. Cronin’s b ehalf on December 2 8, 1993.

The Lillard s’ law yer pl ayed n o role in the trial or appeal of Cronin v. Howe. He is using other law yers’ work in an unrelate d case to a

dvance the

interests of his clients in this case. While h e made severa l cosm etic chan ges in the text of Ms. Croni n’s brief, he did not remove r eferenc es to Ms. Croni n 2 or to the medical malpractice

statute of repose. 3 He even misc haracte

rized his o wn client s’ clai m4 The brief states on page 15 that “the instant case encompasses a malpractice a ction under Tennessee’s Medi a l [sic] Malpractice Review Board and Claims Act of 1975 .” (Boldface type in the original brief).

-4- as a “malpractice action." 4 Of cour se, neith er Ms. C ronin nor the th ree-yea

r statuteof repose for medical m alpractice a cti ons has any thing to do wi th the Lillards’ cause of action in this case.
Copyingthe work o f another lawy er in an unr

elated ca se is unacceptable. Itevinces di srespect

for one’ s client, for this c ourt, and, more impor tantly , for the law itself. It also ca

lls into ser

ious question wheth er the l awye r is com petently and zealously representing his or her clien t. We would normally strike the brief and direct it s author to s ubmit a new one

more consistent

with the type of

work we expec tfrom

the membe

rs of the ba

r of this c ourt. H owever, we see n o need t o require r ebriefin g in this cas e because this appea

l is patentl y fri volous.

III.

The Gen era l Assembly r ecognized very early

in our state’s history that diligent plaintiff s should have

an oppo rtunity to renew lawsuits that were dismissedfor any

reason not

concluding t

heir right of action. Today , Tenn. Code Ann. § 28- 1-105(a) (Supp. 199 5) provides , in part :

If the action is commenced wi thin th e ti me limited by a r ule or stat

ute of li mitat

ion, but the ju dgment or decree is rendered against the plai ntif f upon any gr

ound not concluding the pla intiff’ s right of action, or wher

e the jud gment

o r decre e is rende

red in favor of the plai ntiff, a

nd is arre sted, or r

eversed on appea l, the plaintiff, or the plaintiff’s representatives and privies, as the ca se may be, m ay, from

time to time , comm ence a new act io n within one (1) y ear aft

er the reversa l or arre st. This statute, now comm

only referred to as the “ savings statute,” is considered remedialand, t hus, is co nstrued libe rally to preser

ve the righ

ts of dilige nt plaintiff s. Kee v. Shelter

Ins. Co. , 852 S.W .2d 226, 22 8 (Tenn. 1993); Dukes v. Montgome ry County Nu rsing Home , 639 S.W .2d910, 912-13 (Tenn. 1982). It has
neverbeen constr

ued, howe ver, to i nsu late plaintiff s from their own

laches,-5-

negligence, or othersimilar fault. Moran v. Weinberger , 149 Tenn. 537, 543, 2 60 S.W. 966, 967 (19 24).

The savings sta

tute is n ot o pen-ended . By its own te

rms, it provides a plaintiff with one y ear wit

hin which to refile

its action after it has been concluded. The one-year period is the m aximum a mount of t im e perm

itted by the savings statute, and it

cannot be extended by successiv e volunt ary dismissals. Turner v. N. C. & St. L. Ry. , 199 Tenn. 137, 141 , 285 S.W .2d 122, 12 4 (1955); Bennett v. Town & Country Ford, Inc. , 816 S.W .2d 52, 54 ( Tenn. C t. App. 1991). This court heldover fif

teen y ears ago t

hat the sav ings statute w ould not pres erve a thi rd suit for the same cause of action filed m ore than one year after the sec on d d is mi ssal of the suit. Payne v. Matthews , 633 S.W.2d 494 , 496 (Tenn. Ct . App. 1982).

The Lillard s’ law yer a

cknowledg e d in the tria

l court tha

t the holding o f Payne v. Matthews would req uire the di smissa

l of the Lillards’ th ird com plaint. He asserted, however, that the Tennessee S uprem e Court w ould overru le Payne
v. Matthews when it de cided Cronin v. Howe

. The trial court was appa rently not swayed by the lawy er’s pr

ediction a nd determ ined that th e summa

ry judgment was appropri ate based o n the und isputed facts of the case.
The predictio ns of

the demise of Payne v. Matthews proved to be premature. Ms. Cronin had refil ed her complaint within one year after her voluntary dismis sal. Accordingl y, Cronin v. Howe involved th e relati onship betw een the savings statute an d the m edical m alpracti ce statute

of repose , not the

time within which a complaint must be refiled after a volunt ary dismissal. Th e Tennessee Suprem e Court he ld: [A] plaintiff

who volunta

rilynon-suits the initial action may rely upon the savings sta

tute and refile w ithin one year of the non- suit, eve n if thenon-suit and the refi ling occur beyond the three-yea r statute of repose. Cronin v. Howe , supra , slip op. at 10-11. Nothing in the Court’s decision states
or even implies that the holding of Payne v. Matthews is no longer valid or that plaintiffs could exte nd the tim e for re filing their

compl aints by taki ng successi ve voluntary nonsuits.5 The Tennessee Supreme Court stated in Rickets v. Sexton , 533 S.W.2d 293, 294 (Tenn.

1976) that the filing of a noticeof voluntary dismissal was all that was required to take a voluntary nonsuit. Howeve

r, this court later

held that the savings statute begins to run from the date of the entry of

the order di smissing t

he suit wit

hout prej udice, not from the date of the filing of the notice. Evans v. Perkey , 647 S.W.2d 636, 640-41 (Tenn. Ct. App. 1982).

6 A frivolou s appeal

is one tha t is devoid of

merit or t hat has lit tle prosp ect of s ucceed ing. IndustrialDev. Bd. v. Hancock , 901 S.W.2d 382, 385 (Tenn. Ct. App. 1995). Tenn. Code Ann. § 27-1-122 (1980) empowers this court to award r

easonab le damag es, inclu ding att orney s fees, for filing a frivolous appeal upon the motion of a party or upon the court's own motion.
-6- Payne v. Matthews is consiste nt with the tradit ional under standing of

both the letter a

nd the “ spirit” of

the savings statute . The st atute’ s purpose is simply to give deserving plaintiffs a “brief period” within which to refile their suit after ithas bee n co ncl ude d in con clu siv ely. Nashville, C. & St. L. Ry. v. Bolt on , 134 Tenn. 447, 455, 184 S.W. 9, 11 (1916), and this “ brief period” cannot be extended by successiv e volunt ary dismissals. Turner v. N. C. &St. L. Ry. , 199 Tenn. at 141, 285 S.W. 2d at 124. The Lillards’ opportunity to refile their suit expired on March 22, 1990 - one y ear aft

er the ent ry of the or der granting their first voluntary dismis sal. 5 Thus, their third complaint filed on August 22, 1994, cam e too late.

IV.

We affirm

the sum mary judgm ent and also find that this appea

l is frivol ous. 6 Its out come i s cl earl y con tro lle d by Payne v. Ma tth ews, and the Tennessee Sup reme Court’ s decision i n Cronin v. Howe has no bear ing on t he cont inuing validity of Payne v. Matthews . Acco rdingly , we aw ard damages for a frivolous appeal to Courier

Printing a

nd Mr. Pi nckley , includingall their costs and expenses
on this appea

l. We rem and the case to the

trial cour t for the a ssessm

ent of thes e damages, and we a

lso tax the

costs joi ntly an d several ly to Nathaniel and Pe linda Lillard for wh ich execut ion, if neces sary, may issue.

_ __________

_________________

_____ _ WILLIAM C. KOCH, JR., JUDGE

CONCUR:

_________________

_________________HENRY F. T ODD, P.J., M.S.

_________________

_________________ BEN H. CANTRELL, JUDGE