IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

February 6, 2013 Session

DORIS CANNON EX REL. JUANITA E. GOOD v. BHASKAR REDDY, M.D.

Appeal by Permission from the Circuit Court for Maury County

No. 13810, 13648 Jim T. Hamilton, Judge

No. M2012-01332-SC-S10-CV - Filed January 29, 2014

The plaintiff filed a health care liability action against the defendant. During the pendency

of her action, the General Assembly enacted the pre-suit notice and certificate of good faith

requirements of Tennessee Code Annotated sections 29-26-121 and -122. The plaintiff

voluntarily dismissed her original action. The plaintiff then filed two successive actions.

First, the plaintiff filed a second action that did not comply with the pre-suit notice and

certificate of good faith statutes. The plaintiff then filed a third action that complied with

Tennessee Code Annotated sections 29-26-121 and -122. The plaintiff moved to consolidate

her second and third actions, and the defendant moved to dismiss. The defendant contended

that the plaintiff’s second action should be dismissed for failure to comply with the pre-suit

notice and certificate of good faith requirements and that her third action should be dismissed

based on the doctrine of prior suit pending. The trial court consolidated the lawsuits and

denied the defendant’s motions to dismiss. The defendant moved for permission to file an

interlocutory appeal, which the trial court denied. We granted the defendant’s application

for extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure.

During the pendency of the appeal, the plaintiff voluntarily dismissed her second action. As

a result of the plaintiff’s voluntary dismissal and our recent holding in Rajvongs v. Wright,

___ S.W.3d ___, 2013 WL 6504425 (Tenn. Dec. 12, 2013), we hold that the plaintiff, who

properly provided pre-suit notice of her claim prior to filing her third action, was entitled to

a 120-day extension in which to refile her complaint pursuant to Tennessee Code Annotated

section 29-26-121(c). The plaintiff’s third complaint was therefore timely filed. We affirm

the judgment of the trial court and remand this case for further proceedings.

Tenn. R. App. P. 10 Extraordinary Appeal by Permission;

Orders Entered by the Trial Court are Affirmed; Case Remanded

JANICE M. HOLDER,J., delivered the opinion of the Court, in which GARY R. WADE,C.J., and

CORNELIA A. CLARK, WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ., joined.
Brent Albert Kinney, Edward A. Hadley, and Phillip Lester North, Nashville, Tennessee, for

the appellant, Bhaskar Reddy.

Olen G. Haynes, Johnson City, Tennessee, and Raymond Wilford Fraley Jr., Fayetteville,

Tennessee, for the appellee, Doris Cannon.

OPINION

I. Facts and Procedural History

On November 10, 2005, Juanita E. Good was admitted to Maury Regional Hospital

in Columbia, Tennessee, for surgery to remove her gallbladder. Ms. Good suffered a drop

in her blood pressure and oxygen saturation during the initial stages of surgery. Although

Ms. Good’s condition stabilized, the lack of oxygen to her brain caused permanent brain

damage.

On November 9, 2006, Doris Cannon, Ms. Good’s conservator, filed a health care

liability action on Ms. Good’s behalf, naming Maury County, Maury Regional Hospital, and

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Ms. Good’s anesthesiologist, Dr. Bhaskar Reddy, as defendants.

In 2009, while Ms. Cannon’s action was pending, the General Assembly amended

section 29-26-121 of the Health Care Liability Act (“the Act”) to require any person who

asserts a claim for health care liability to “give written notice of the potential claim to each

health care provider that will be named as a defendant at least sixty (60) days” prior to filing

a complaint. Act of June 11, 2009, ch. 425, § 1, 2009 Tenn. Pub. Acts 472, 472-75 (codified

as amended at Tenn. Code Ann. § 29-26-121(a)(1) (2012)). The General Assembly also

amended Tennessee Code Annotated section 29-26-122 to require a plaintiff to “file a

certificate of good faith with the complaint” in any health care liability action requiring

expert testimony. Act of June 11, 2009, ch. 425, § 2, 2009 Tenn. Pub. Acts 472, 472-75

(codified as amended at Tenn. Code Ann. § 29-26-122(a) (2012)). In addition, the General

Assembly enacted Tennessee Code Annotated section 29-26-121(c) (2012), which provides

in pertinent part that:

In 2012, Tennessee Code Annotated sections 29-26-115 to -122 and section

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29-26-202 were amended to replace “medical malpractice” with “health care liability.” Act

of Apr. 23, 2012, ch. 938, §§ 7-15, 2012-2 Tenn. Code Ann. Adv. Legis. Serv. 274, 274-75

(LexisNexis) (codified at Tenn. Code Ann. §§ 29-26-115 to -122, -202 (2012)). We will use

“health care liability” throughout this opinion.

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[w]hen notice is given to a provider as provided in this section, the applicable

statutes of limitations and repose shall be extended for a period of one hundred

twenty (120) days from the date of expiration of the statute of limitations and

statute of repose applicable to that provider . . . . In no event shall . . . more

than one (1) extension be applicable to any provider.

Ms. Cannon voluntarily dismissed her action by written notice on January 8, 2010.

See Tenn. R. Civ. P. 41.01 (permitting a plaintiff to voluntarily nonsuit an action without

prejudice by filing a written notice of dismissal prior to trial). On January 6, 2011, Ms.

Cannon provided pre-suit notice of her potential claim by mailing two letters to Dr. Reddy,

both of which contained the same statutorily required information. See Tenn. Code Ann.

§ 29-26-121(a). Ms. Cannon then filed two successive lawsuits. First, she filed a health care

liability action against Dr. Reddy on January 7, 2011, asserting that he had departed from the

recognized standard of professional practice in his treatment of Ms. Good. See Tenn. Code

Ann. § 29-26-115 (2012). This complaint was filed within one year of the date on which her

original action was dismissed. See Tenn. Code Ann. § 28-1-105(a) (2000) (providing that

a timely filed action that is later dismissed without prejudice may be refiled within one year

of the dismissal). Ms. Cannon did not, however, give Dr. Reddy notice of her potential claim

at least sixty days prior to filing her second complaint. See Tenn. Code Ann.

§ 29-26-121(a)(1). Ms. Cannon also failed to file a certificate of good faith. See Tenn. Code

Ann. § 29-26-122(a).

Ms. Cannon again filed a health care liability action against Dr. Reddy on April 27,

2011. In filing this lawsuit, Ms. Cannon relied on her January 6, 2011 pre-suit notice letters

to extend by 120 days the one-year period for refiling her action under the saving statute. See

Tenn. Code Ann. § 29-26-121(c). Ms. Cannon’s third complaint was virtually identical to

her second complaint. Ms. Cannon attached to her third complaint copies of her pre-suit

notice letters and a certificate of good faith.

On May 12, 2011, Ms. Cannon moved to consolidate her second and third actions,

arguing that filing two separate health care liability actions “was necessary because of the

uncertainty of the law as it relates to Tennessee’s new [health care liability] law.” Dr. Reddy

objected to the consolidation and moved to dismiss Ms. Cannon’s second action, citing Ms.

Cannon’s failure to comply with the pre-suit notice and certificate of good faith requirements

of the Act. See Tenn. Code Ann. §§ 29-26-121, -122. Dr. Reddy also moved to dismiss Ms.

Cannon’s third action based on the doctrine of prior suit pending.

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The defense of prior suit pending derives from the common law rule that a party

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(continued...)

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On September 21, 2011, the trial court entered an order consolidating Ms. Cannon’s

refiled actions. In its order, the trial court recognized that Ms. Cannon attempted to preserve

her claim by filing two separate actions: one complying with the “old law” and one

complying with the amended Act. The trial court reserved ruling on Dr. Reddy’s motions

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to dismiss.

Several months later, Dr. Reddy filed a motion asking the trial court to reconsider its

September 21, 2011 order or, in the alternative, to grant him permission to file an

interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. The

trial court denied Dr. Reddy’s motions to reconsider and for interlocutory appeal, finding that

a proper basis existed for consolidation and that Dr. Reddy’s request for interlocutory appeal

was untimely.

Dr. Reddy filed an application for extraordinary appeal with the Court of Appeals

pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure. The Court of Appeals

declined review, and Dr. Reddy filed a Rule 10 application in this Court. We granted Dr.

Reddy’s application.

(...continued)

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could have an action dismissed if there was a prior suit filed against her for the same claims

in the same jurisdiction. See West v. Vought Aircraft Indus., Inc., 256 S.W.3d 618, 623

(Tenn. 2008) (citing 1 William M. McKinney, The Encyclopedia of Pleading and Practice:

Under the Codes and Practice Acts, at Common Law, in Equity and in Criminal Cases

750-51 (Northport, Edward Thompson Co. 1895); Sparry’s Case, (1591) 77 Eng. Rep. 148

(Exch.)). In its modern form, the doctrine of prior suit pending requires proof of the

following four elements:

(1) the lawsuits must involve identical subject matter; (2) the lawsuits must be

between the same parties or their privies; (3) the former lawsuit must be

pending in a court having subject matter jurisdiction over the dispute; and (4)

the former lawsuit must be pending in a court having personal jurisdiction over

the parties.

West, 256 S.W.3d at 623.

The trial court explained in its order that Ms. Cannon was justified in filing two

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actions because “[r]efiling under the ‘old’ law only would certainly invite an attack for

failure to comply with the [new requirements of the Act]. Refiling under the ‘new’ law only

would, likewise, invite an attack for failure to refile within the time allowed by Tennessee’s

Savings [sic] Statute.”

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While this appeal was pending, Ms. Cannon filed a notice of voluntary dismissal in

the trial court on October 11, 2012, seeking to dismiss her second action pursuant to

Tennessee Rule of Civil Procedure 41.01. On October 12, 2012, the trial court entered an

order dismissing Ms. Cannon’s second action in light of this Court’s decision in Myers v.

AMISUB (SFH), Inc., 382 S.W.3d 300, 309 (Tenn. 2012). See also Rajvongs v. Wright,

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___ S.W.3d ___, 2013 WL 6504425 (Tenn. Dec. 12, 2013). On the same day that the trial

court entered the order of voluntary dismissal, Dr. Reddy filed a motion in this Court to stay

the trial court proceedings during the pendency of this appeal. Six days later, we entered an

order denying Dr. Reddy’s request for a stay.

II. Analysis

The trial court’s order voluntarily dismissing Ms. Cannon’s second action renders

moot Dr. Reddy’s argument that the doctrine of prior suit pending precludes Ms. Cannon’s

third action. See Walker v. Vandiver, 181 S.W. 310, 311, 133 Tenn. 143 (Tenn. 1915)

(holding that a dismissal of a prior suit before the trial of a subsequent suit obviates the

defense of prior suit pending). Because Ms. Cannon’s second action has been voluntarily

dismissed, the only issue before us is whether the trial court erred in denying Dr. Reddy’s

motion to dismiss Ms. Cannon’s third action on statute-of-limitations grounds. A trial

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court’s ruling on a motion to dismiss is a question of law, which we review de novo with no

presumption of correctness. Leggett v. Duke Energy Corp., 308 S.W.3d 843, 851 (Tenn.

2010).

Dr. Reddy filed a motion for summary judgment concerning the merits of Ms.

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Cannon’s second health care liability action on February 7, 2011. This motion was pending

when the trial court entered its order of voluntary dismissal of Ms. Cannon’s second action.

See Tenn. R. Civ. P. 41.01(1) (permitting a plaintiff to voluntarily nonsuit an action by

written notice “except when a motion for summary judgment made by an adverse party is

pending.”). But see Stewart v. Univ. of Tenn., 519 S.W.2d 591, 593 (Tenn. 1974) (holding

that the trial court possesses the inherent authority “under a proper set of circumstances . . .

to permit a voluntary dismissal, notwithstanding the pendency of a motion for summary

judgment.”). Although not raised by either party, we highlight this issue as an example of

the procedural anomalies presented by Ms. Cannon’s case.

Although Dr. Reddy requested a stay of the entry of the trial court’s order of

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voluntary dismissal, we denied his request and allowed the trial court’s dismissal of the

second action to stand. We see no reason to revise our decision at this time. But see In re

Conservatorship for Allen, No. E2010-01625-COA-R10-CV, 2010 WL 5549037 at *7 (Tenn.

Ct. App. Dec. 29, 2010) (holding that during the pendency of an extraordinary appeal, the

trial court erred by amending orders that were the subject of the appeal).

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In Myers, we held that a plaintiff who files his initial health care liability complaint

prior to the effective date of the pre-suit notice statute, dismisses his original action, and

refiles an action after the effective date of the statute must comply with the pre-suit notice

and certificate of good faith requirements of the Act. 382 S.W.3d at 309. Accordingly, Ms.

Cannon’sthird lawsuit is subject to the pre-suit notice and certificate of good faith provisions

of the Act. Notably, as it relates to her third complaint, Dr. Reddy does not challenge Ms.

Cannon’s compliance with the pre-suit notice or certificate of good faith statutes. Instead,

Dr. Reddy contends that the 120-day extension of the “applicable statutes of limitation or

repose” does not apply to the saving statute. See Tenn. Code Ann. § 29-26-121(c).

We recently addressed this issue in Rajvongs v. Wright, ___ S.W.3d ___, 2013 WL

6504425 (Tenn. Dec. 12, 2013). In Rajvongs, we labeled the “narrow category” of plaintiffs

described in Myers as “transitional” and determined that although the saving statute is neither

a statute of limitation nor a statute of repose, there was no indication “that the General

Assembly would require transitional plaintiffsto provide pre-suit notice before refiling under

the saving statute and yet deprive such plaintiffs of the 120-day extension.” Rajvongs v.

Wright, 2013 WL 6504425 at *5. We therefore held that a transitional plaintiff who properly

provides pre-suit notice is entitled to a 120-day extension of the saving statute. Id.

Applying our holding in Rajvongs, Ms. Cannon is entitled to the 120-day extension.

Ms. Cannon’s pre-suit notice letters of January 6, 2011, alerted Dr. Reddy that a “potential

claim” for health care liability was being asserted against him. See Tenn. Code Ann.

§ 29-26-121(a). Ms. Cannon’s pre-suit notice letters preceded the filing of her third

complaint by 111 days, far exceeding the sixty-day requirement of section 29-26-121(a)(1).

Dr. Reddy does not dispute that Ms. Cannon’s notice letters complied with the pre-suit notice

statute and does not challenge Ms. Cannon’s certificate of good faith. Accordingly, we

conclude that Ms. Cannon, a transitional plaintiff who properly gave pre-suit notice, is

entitled to the automatic 120-day extension granted in section 29-26-121(c). Ms. Cannon’s

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third action was therefore timely filed on April 27, 2011.

III. Conclusion

We conclude that Ms. Cannon’s pre-suit notice of January 6, 2011, extended her time

for refiling her action by 120 days and that her April 27, 2011 action was therefore timely

filed. We affirm the judgment of the trial court and remand this case for further proceedings.

At the risk of stating the obvious, our reasoning in this case does not extend beyond

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the bounds of health care liability law and the limited number of transitional plaintiffs whose

cases are still pending.

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Costs of this appeal are taxed to Dr. Reddy and his surety, for which execution may issue if

necessary.

_________________________________

JANICE M. HOLDER, JUSTICE

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