1 Pla intif f's complaint fi led on May 15, 1998, err oneously indicat ed that t he inci dent occur

red on May 17, 1998. 

### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE March 8, 2000 Sessi

on CONNIE HARRIS AND HUSBAN D, DANNY HARRIS v. MA RRIOTT INTERNATIONAL, INC., D/B/A RESIDENCE INN BY MARRIOTT, BRENTWOOD, TENNESSEE, AND FIBERCARE, INC. An Appeal from the Circuit Court for Williamson County

No. II-98316 Russ Heldman, Judge

No. M1999-00096-COA-R3-CV - Filed April 17, 2001

This is a slip and fall ca

se. The plaintiff

filed her compla

int barely w

ithinone year

of the injury, but didnot cause proce

ss to issue until six months lat er. Both defend

ants moved to di smiss pla intiff's case as time-barred u

nder the one-y

ear statute of lim

itations. The tr

ial court granted the moti ons. We reverse and remand, finding that under Rule 3 of the Tennessee Rules of Civil Procedure, the plaintiff can rely on the filing of

her complaint

to toll the statute of limitations so long as the plaintiff causes process

to issue within one y

ear of the filing

of the complaint.
Tenn. R. App. P. 3 Appeal as of Right; Jud gment of the Circ uit Court Revers

ed and Remanded.
H OLLY K IRBY L ILLARD , J., deliver ed the opi nion of the

court, in w

hich W. F RANK C RAWFORD , P.J., W.S., and D AVID R. F ARMER , J., joined.
Phil lip R. Newman, Franklin, Tennessee, for the appellants, Connie Harris and Husban d, Dann y Harris. Cyrus L. Booker, Nas hville, Tenne ssee, for the appellee, Marriott International, Inc ., d/b/a Residence Inn by Marriott, Brentwood, Tennessee

. Thomas I. Carlton, Jr., Beth C. Baggett, Nashville, Tennessee, for the a ppellee, Fibercare, Inc.
OPINION
In this personal injur

y case, Pla

intiff/Appellant C

onnie Harris

(“Harris”) slip

ped and fell in the bathroom of her hotel ro om in Brentwood, Tennessee, on May 17, 1997. 1 As a result of the2 A personal injury action must be co mmenced within one year after the cause of acti on accrues. See Tenn. Code Ann. § 28-3-104(a)(1) (2000). -2- incident, she allegedly suffered injuries and phy sical pain. On May 15, 1998, she filed a complaint for damages against Defendant/Ap pel lees Marriott International, Inc., d/b/a Residence I nn by Marriott, Brent wood, Tennessee ("Marriott") and Fibercare, I nc. ("Fibercare"), the company that providedcarpet cleaning services to Marrio tt. In her complaint, she alleged that Marriott and Fibercare negligently left the carpet in her ro

om in a wet condition

, and that this caus

ed her to fall on the "wet and slick bath room vinyl floor."
Harris filed her complaint on May 15, 1998, but she did not file

the original summo

nses with the Williamson County

Circuit Court Clerk

until November 6, 1998. The clerk issued and served process to both defendants on November 13, 1998. On January 15, 1999, Marriott filed a motion to d ismis s Harris's comp

laint pursuant to Rul

es 12.02 and 12.03 o

f the Tennessee

Rules of Civil Procedure, arguing that the complaint failed to state a claim upon whi ch relief coul d be granted. Marriott argued that H

ar ris’s claims were time-barred under the one-yea r statute of limitations 2 because she had not cause

d process to

issue within thirty days of the filing of complaint as require d by Rule 3 of the Tennessee Rules of Civil Procedure. The trial court agreed and i ssued an order granting the motion to dismiss on March 10, 1999. On April 8, 1999, Harris filed a no tice of appeal, while her claims a

gainst Fibercare we

re still pending. On Apr

il 22, 1999, Harris

filed a motion to reconsider

with the trial court. On April 26, 1999, Fibercare filed a motion to dismiss, also asserting that the complaint

was time-barre d under the statute of limitations. The trial court issued a final order on June 11, 199

9, denying

Harris’s motion to

reconsider and

granting Fibe

rcare’s motion to dismiss. Harris filed a second notice of appeal on J uly 9, 1999. By order of this Court dated September

23 , 199 9, Harris’s second appeal was dismissed. The order noted that upon the trial c ourt’s entry of its f

inal order on June 11 , Harris’s first a ppeal filed on Apr

il 8 became

effectiv e against both Marriott and Fibercare.
On appeal, Harris

argues that Rule

3 of the Tennesse

e Rules of Civil

Procedure doe s not require her to cause process to issue against defendan ts within thirty days of the filing of her complaint in order to tol l the statute of limitations. Defendants respond that the trial court was correct in holding that Rule 3 requires her to do so.
In considering an

appeal from

a trial court’s g

rant of defenda

nt’s motion to dismiss,

we take all allegations of fact in the plaintiff’s complaint as true and review the trial court’s legal conclusions de novo with no presumption of correctness. See Stein v. Davidson Hotel Co. , 945 S.W.2d 714, 716 (Tenn. 1997).
Rule 3 of the Tenne

ssee Rules of Civil Pr

ocedure states:
All civilactions are commenced by filing a complaint with the clerk of the court. An actio n is commenced within the meaning of any statute of limitations upo n suc h filing of a complaint, wh

ether process be

issu ed ornot issued and whet her process-3-

be returned served or unserved. If process remains unissued for 30 days or is not served within 30 days from issuance, regardless of t he reaso n, the plaintiff cannot rely u pon the original commencement to toll the running of a statute of limitations unless the plaintiff continues the action by ob taining issuance

of new process w

ithin one year from

issuance of the pr

evious process or

, if no process

is issued, within one year of the

filing of the com

plaint.
Rule 3 was amended in 1997 to removethe words “and summons” after “complaint” in the first two sentences. Prior

to 1997, Rule 3 read

as follows: All civil actions are commenced by filing a complaint and summons with the clerk of the co urt. 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 returned served or unserved. If process remains unissued for 30 days

or is not ser ved or i s no t re tur ned wit hin 30 d ays from issuance, regardless

of the reason, theplaintiff cannot rely upon the original commencement to toll the running of a

statute of limitations unless the plaintiff continues the action by obtaining issuance of new process within one year from issuance of the previous processor, if no process issued, within one year of the filing of the complaint and summons. Under Rule 3 as amended, the commencement of the lawsuit does not hinge on the issuance of the summons, at least not initially. Robert Banks, Jr. & June F. Entman , Tennessee Civil Pro cedure , § 2- 1 (b), at 22 (1999). The 1997 Advisory Commission comments specifically on this chang e, stating:
Deletion of the requirement of filing a summons in addition to a complaint returns the requirement for

commencement to

pre-1992 status. While there appeared to be reasons making the additional summons filing mandatory, other reason s militate against it. For one thing, the recent waiver of service pro v isions of Rule 4.07 may lull a lawyer into b elieving no summons need be filed under that procedure. For anot her, there is a hazard that a federal diversity case in Tennessee w ould not be commenced by simply filing the complaint require d by Federal Rule 3. The 1997 Advisory

Commission in 1997 note s further:
Some clerks by

local court rule may want to require lawy ers to file a summons - not to toll the running of a statute of limitations , but rathe r to assist the cler ks’ workloads. Other clerks may want to handle

the chore themselves. Either position is appropriate under revised Rule 3. “ Commencement” for statute of limitations purposes would occur on the day the complaint is filed, regardless of the met hod chosen for prep

aration of a summo

ns.-4-

Therefore, under Rule 3 as amended, the filing of the complaint, not the issuance of the summons, is the commencement

of the action for purposes of the statute of limitations. However, the issuance and service of process must be considered:

Gen eral ly, und er the current version of the rule, the plaintiff will have commenced

the action within the statute of limitations when he or she has filed the complaint within the a ppli cable time period provided by the statute. Rule 3 specifically

so provides. For statute of limi tations purposes,

however, what Rule 3 gives in the first two sentences it takes away with the third. The third sent enc e addresses two contingencies that may prevent the plaintiff from rely ing upon the filing of the compla

i nt as commenceme

nt. By the e

xpress provisions of

Rule 3, if ei ther(a) p rocess is not issue d for thirty d

ays, or (b)

process is not ser

ved within thirty days from its issuance, the plaintiff may be unable to claim commencement of the action on the ba

sis of the origina

l filing the compla

int.
Should either of those two events occur – e ither (1) no proc

ess is issued for thirty days, or (2) process was issued but it has not been served within thirty days of its issuance – the plaintiff m ay stil l gain the benefit of the original filing of the complaint in one of two ways. First, the plaintiff ma y continue the action by obtaining the issuanc e of new process within one year from the issuance of the previous process. Second, if no proc ess was ever issued, the plaintiff may continue the action by obtaining issuance of process within one year from the filing of the complaint.
Banks & Entman, supra § 2-1(b) at 23. (footnotes in text omitted). Thus, the language of the third sentence in Rule 3 indicates that if the complaint is f

iled within

the limitations peri

od, this will toll the statute of limitations so long as process is issued within one year of the filing of the complaint.
The Defendants argue that Rules 4.01 and4.04 of the Tennessee Rules of Civil Procedure, when read in conjunction with Rule 3, require that a plaintiff fil e “ne cess ary” copies of the summons withthe clerk within th

irty day s of the c omplaint. Rule 4.01 states that “[u]pon the filing of the complaint the clerk of the court wherein the complaint is filed shall forthwith issue the required summons and cause it, with necessary copiesof t he comp laint and summons, to be delivered for service to any person authorized to serve process.” (Emphasis added.) Rule 4.04 states that “[t]he plaintiff shall furnish the person making the service with such copies of the summons and complaint as are necessary.” Defendants arg ue that since the clerk is requi red to “forthwith” issue the “required” summons, then the only reasonable reading of Rule 3 is that the plaint iff must file a summons with the clerk within thirty days of the comp laint. The y further conten d that the l anguage of Rule 3 stating “[i]f process remains unissued for thirty days” is meaning less unless the plaintiff is required to file a

summons within thirty

days,for the only

way that pr

ocess can remain unissued for thirty da

ys is if the cl

erk fails to issue p

rocess after th

e filing of a summo

ns.3 In 1990, th e firs t part of Rule 3 read:
All civil actions are commenced by filing a compla

int w ith t he Court. An action is com menced within the meaning of

any sta tute of limit ations upon such f

iling of a complaint, wh

ether process be r

eturned served or unserved. . . . -5- The Tennessee Supreme Court has stated that the term “forthwith” as used in Rule 4 means only that the summons must be issued “within areasonable time” after the complaint is filed. Hine v. Commercial Carriers, Inc. , 802 S.W.2d 218, 220 (Tenn. 1990). Hine interpreted Rule 3 as it was written prior to 1992; the first part of Rule 3 prior to 1992 is very similar to the first part of Rule 3 tod ay. 3 Id. at 219. In particular, the words “and summons” did not follow the word “c

omplaint” in the first sentence at

that time. The Court in Hine observed that the use of the term “f

orthwith” in Rule 4.01 “prevents th

e adoption of a bla

nket rule that would render ineffective the commencement of a lawsuit simply because a summons is not issued at the moment the complaint is filed.” Id. at 220. See also Banks & Entman, supra § 2-2(b) at 26

. The Hine court made it clear that Rule 3, not Rule 4.01, gover

ns the commenceme

nt of a lawsuit for

purposes of the sta

tute of limitations:
Rule 3 clearly s

ta tes that “[a]n action is commenced within the meaning of any statute of limitations upon suc h filing of a complaint , whether process be returned served or unserved.” (Emphasis added). If the drafters of the rule intende d a complai nt and

summons to commence

an action for sta

tute of limitation pur

poses, th e rule coul d have easily been drafted to so indicate. As it is, however, Rule 3 speaks in terms of a complaint and the statute of limita

tions, regardle

ss of process. It adds no other requirement for commencing an action. Rule 4.01, dealing with the issuances of a sum

mons, says no

thing about the sta

tute of limitations.
Hine , 802 S.W.2d at 219-20 (emphasis in original). Thus, to determine whether Harris’ complaint is barred by the statute of limitations, we must look to the plain language of Rule 3.
The defendant s rely on Gregory v. McCulley , 912 S.W.2d 175 (Tenn. Ct. App. 1995), for the proposition that the plaintiff must obtain service of process within thirty days from issuance. The Gregory Court stated:
Tenn.R.Civ.P. 3 provides plaintiffs who do not obtain service of

processwithin thirty days with two av enues throu gh which they can rely on the initial filing date as a bar to the running of the statute o f limitations. * * * Plaintiffs may obtain the issuance of new process withi

n six months of the is suance of the previous process, or they may recommence the

action within one year of the issuance of the or

iginal process. Gregory , 912 S.W.2d at 177. Gregory , however, involves the version of Rule 3 in effect in 1995 that required the pla

intiff to file a complaint and summons in order to to ll the statute of limita

tions. Given the significant

changes in Rule 3 since Gregory was decided, we find it inapplicabl

e in this case.-6-

Under the language in Rule 3, if process is not issued within the thirty-day periodafter

the complaint is filed, the plain

tiff may not rely on the filing of the c omplaint to toll the statute of limitations “unless the plaintiff continues the action by obtaining issuance of new process . . . w

ithin one year o

f the filing of the

complaint.” I

n this case, Harris caused process to issue on November 13, 1998, within one year of May 15, 1 998, the day sh e filed her complaint. Under Rule 3, then, Harris may rely

on the filing of th

e complaint to toll th

e statute of limitations. Consequently, the trial court’s dismissal of the plaintiff’s complaint must be reversed.
Acco rdi ngly, the decision of the trial court is reversed and the case is remanded for proceedings consistent with this Opinion. Costs are to be taxed to Appellees Marr

iott Internat

ional, Inc., d/b/a Residence Inn by Marriott, Brentwood, Tennessee, and Fib erca re, I nc. , an d th eir sur ety, for which execution may issue if necessary

.

___________________________________ HOLLY KIRBY L

ILLARD, JUDGE