# FILED February

9, 1996 Cecil W. Crowson Ap pellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE FRANKLIN SHANE HALSTEAD, ) ) Plaintiff /Appella nt, )

) ) VS. ) ) Davidson C ircuit ) No. 94C- 1781 NILES-BOL

TON ASSOCIATES; ) DEREK BARTON COMPANY, INC.; ) Appeal N o. DEREK BARTON COMPANY, INC., ) 01-A-01- 9503-CV- 00113 d/b/a DEREK BART ON TENNI S COURTS; ) and DEREK BART ON TENNI S COURTS, ) ) Defenda nts/Appell ees. ) APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE THE HONORABLE WALTER C. KURTZ, JUDGE For Franklin Shane Halstead : For Niles-Bolton Associates : Daniel L . Clayton Jefferson C. Orr Kinnard & Clayton Manier , Herod, Hollabaugh & Smit h Nashville, Tennessee Nashville, Tennessee For Derr ick Bart on C ompan y, Inc. : Raym ond D. Lackey Smith, Lackey , McHale & Whaley Brentwood, Tennessee 

## AFFIRMED AND REMANDED

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

## O P I N I O N
This appeal involves a personal injury action in which th e plaintif

f sought to file a se

parate su it against previously unknown def

endants in a

ccordanc e with Tenn. Code Ann. § 20-1-119 ( 1994). T he Fifth C ircuit Co urt for D avidson Cou nty granted th e new def endants’ motion s for sum

mary judgm ent on the gr

oun d thatthe complaint was filed one day late. The plaintiff asser ts on this appeal that the trial cour

t erred b y fai ling to exte nd the time for filin g his am

ended com

plaint by three days in accordance with Tenn. R. Civ. P. 6.05. We have determ ined that Tenn. R. Civ. P. 6.05 does no t extend the deadline f

or taking th e actions required by Tenn. Code Ann. § 20-1-119 and, therefo re, affirm the trial co urt. I. Franklin Shane Halstead worked as a maintenance supervisor at the Ar bor Creek Apartments in Nashville. While i nspecting the prem ises on Sep tembe

r 18, 1992, he discover

ed that o ne of the lights illuminating the tennis courts had burned out. He

was in the

process of

replacin g the bulb wh en the top a rm of the light pole swiveled suddenly causing the ladder on which he

was stand

ing to slip away from the light pol e. Mr. Halstea d fell fr om the ladder an d was inj ured. On September 17, 19 93, M r. Hal s tead and his wife sued the general contractor

who built the apartment com plex and several other c onstruc tion compa nies. The gene

ral contractor fi led an answ er on Mar ch 8, 1994, asserting thatMr. Ha

lstead’ s injurie s were p r o ximately ca used by the negligence of other parties, including L aing Prope rties, Inc. and

Laing Arbors , Inc., the ownerand ons ite m anager of

the apart ment c omple x, Niles -Bolton A ssociates, Inc. (“NilesBolton”), the archi tectural firm that design ed the tennis courts, and Derek Barton Compa ny (“Derek

Barton”) , the com

panyresponsible

for constr

ucting the t

ennis courts. Mr. Ha

lstead and his wife filed a separate action aga

inst these p arties on June 7, 19 94, in accor dance with Ten n. Code Ann. § 20-1-119 .1 Laing Properties’s motion was based on the fact that it had settled the Halstea

ds’ claim s. 2 Ms. Halstead has elected not to pursue any of her claims, and M r. Halstead has not appealed from the d

ismissal of

his claimsagains t the owne r and re sident m anage

r of th e apartme nts. 3 Act of May 13, 1993, c

h. 407, 1993 Tenn. Pub. Acts 699. 4 McIntyre v. Balentine , 833 S.W.2d 52, 58 (Tenn. 1992).

-3- The newly nam

ed defendants movedfor

summ ary j udgmen

t. Nile s-Bolton andDerek

Barton asserted that the Halsteads’ claim s against them were not filed within the time required

by Tenn. Code A

nn. § 20-1- 119. 1 The trial court granted these motion s after determ ining that the

Halstea ds file d their complaint one day late. On this appeal, Mr. Halstea d takes issu e with the

summ ary di smissa

l of his claims against the architect and the tennis court contractor. 2 II. The statute of

limit ations for

personal i njury

actions is n orma

lly one year. See Tenn. C ode Ann. § 28-3-10 4(a)(1) (Supp. 19 95). In 19 93, howev er, the General Assem

bly enacted Tenn. Code

Ann. § 20- 1-119, 3 in part to c ounteract the erosion of thejoint and

several liability doctrine that accom panied the Tennessee Sup reme Court’s adoption of modified compa rative f ault. 4 Tenn. C ode Ann. § 20- 1-119 extends the

applicabl e statute

of lim itations in comparative fault cases when an orig inal defendant

alleges th at “a

person not a

party to the suit c aused or contribu ted to the injury or damage for whic h the plai ntiff seek s recovery.” Tenn. Code Ann . § 20-1-119(a ) perm its a plaint

iff to am endits com

plaint or to file a se

parate c ompla

int against

a previous ly unna

med pa rty “within

ninety (90) days of

the filing of the fir st a nswer or first amended answer alleging such perso n’s fault.” The first answer alleging th e possible f

ault of persons other than the original defendants was filed by Nashville Mid-South Contractors on March 8, 1994. Thu s, Tenn . Code Ann. § 20-1- 119(a) re quired the Halstea ds either t

o amen d their com

plaint or tofile a se

parate c ompla

int on or before Ju ne 6, 1994. The Halstea

ds’ sec ond com

plaint wa s no t filed unti l June 7, 19 94 and was,-4-

therefore, untimely unle ss some other stat

ute or rule

extended t

h e ninety-day period. Mr. Halstead asserts that Tenn. R. Civ. P. 6.05 requires that the ninety-day period be extended by three days because he received Nashville Mi d- Sout h’s answer b y mail. Tenn. R. C iv. P. 6. 05 provides:

Whenever

a party has th e ri gh t o r is req ui red to do so me actor take som

e procee dings within

a prescr ibed period after the servic e of a notic e or other paper upon such party and thenotice or paper is served u pon such par

ty by mail three (3) day s shall be added to the prescribed period. If the extra three days for service by mail applies to complaints filed in accordance withTenn. C ode Ann. § 20-1-119, then Mr. Halstea d’s sec ond compl aint would be timely. Tenn. R. Civ . P. 6.05 applie s only in circum stances where a pa rty “is required to do some act . . . within a prescribed period after the service of a notice or other pape

r upon such pa

rty a nd the notice

or paper is served upon

such party by mail.” By its own terms, it does not apply in circum stances where a pa rty is required to take s ome act within a prescribed period after the f iling of a paper. Accordi ngly, Mr. Ha

lstead ca n find no sola

ce in Te nn. R. C iv. P. 6. 05. Our view of t he relati onship betw een Tenn . R. Ci v. P. 6. 05 and Tenn . Code Ann. § 20- 1-119(a) is consiste nt with othe r precedents constr

uing Tenn. R. Civ. P. 6.05. W

e have hel d that the r

ule does not extend the period for pe rfecti ng administrative

appeals which must be filed within sixty (60) day s after the entry of the agency’s final order. Cheairs v. Lawson , 815 S.W .2d 533, 53 4 (Tenn. Ct. App. 1991); Houseal v. Roberts , 709 S.W.2d 580, 581 (Tenn. Ct . App . 1984). Likewis e, it does not apply when the r

equired a ctionmust be

taken wit hin thirty days of the date of a notice . Cop eland v. Bick , App. No. 01-A-01 -9503-CV00114, slip op. at

3-4, 20T.A. M. 39-27 ( Tenn. C t. App. Sept. 1, 1995) (NoTenn. R. App. P. 11 applica

tion filed) . Our in

terpreta tion is also c onsistent w ith the federal courts’ inter

p retation o f an analog ous federal rule. See, e.g., Pizzichil v.-5-

Motors Ins. Corp . , 90 F.R .D. 119 , 121 (E. D. Pa. 1981) (“ [W] here a st atute provides that the ti me f

or taking act

ion begins to r

un as of the date of the filing of an order, the fact that notice of filing w as given by

mail does not ent

itle the pa rty to the three-day extension provided by [Fed. R. Civ. P.] 6(e). ”) III. Sensing the preca

riousness of

his position, Mr. Ha

lstead als o asserts thathe is entitled to relief under Tenn. R. Civ. P. 6.02 if his compl aint is held to be unt imely. Tenn. R . Civ. P . 6.02 em powers th e trial c ourt to extend the tim e for taking an action “where the failure to act was the result of excusable neglect.” Mr. Halstead cites no authority for his as sertion tha

t the tria l judge e rred in ref

using to grant him

an enlarg emen

t of tim e under T enn. R. Civ. P. 6.02, an d we find no reason to so hold. Decisions to grant r

elief unde r Tenn. R. Civ. P. 6.02 a

re discre tionary with the trial court . See Douglas v. Estate of Robertson , 87 6 S.W .2d 95, 97 (Tenn. 1994). We do no t t hink the tri al court a bused its discretion by

failing to extend the time period for ac tion under T enn. Code Ann. § 20- 1-119 under

the fact s o f this case. A

lthough Mr. Halstea

d’s couns el may h ave genuinely misinterpreted the applicati on of Tenn . R. Civ. P. 6.05, we do not think such a mistake of law provides a basis for

extending the statute

of limit ations in co mparative fau lt cases. IV. We affirm

the order granting th e summa

ry judgm ent and dismissing Mr. Halst ead’s cla ims against Niles-Bolton Associates, Derek Barton Company, Inc., Derek Bart on C ompan y, Inc. d/b/ a Dere k Barton Tennis Co urts, and

Derek B arton Tennis Courts with prejudice. We r emand the case to the trial court for whatever further proceedi ngs ma

y be r equired, and we also t ax the cost s of this app eal to Frankl in Shan e Hal ste ad a nd h is s ure ty fo r whi ch e xec uti on, if n eces sary, ma y issue._ __________

_________________

_____ _ WILLIAM C. KOCH, JR., JUDGE CONCUR:

_________________

_________________ HENRY F. T ODD, P.J., M.S.

_________________

_________________ BEN H. CANTRELL, JUDGE