FILED

February 9, 1996

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

FRANKLIN SHANE HALSTEAD, )

)

Plaintiff/Appellant, )

)

)

VS. )

) Davidson Circuit

) No. 94C-1781

NILES-BOLTON ASSOCIATES; )

DEREK BARTON COMPANY, INC.; ) Appeal No.

DEREK BARTON COMPANY, INC., ) 01-A-01-9503-CV-00113

d/b/a DEREK BARTON TENNIS COURTS; )

and DEREK BARTON TENNIS COURTS, )

)

Defendants/Appellees. )

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 & Smith

Nashville, Tennessee Nashville, Tennessee

For Derrick Barton Company, Inc.:

Raymond D. Lackey

Smith, Lackey, McHale & Whaley

Brentwood, Tennessee

AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE
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O P I N I O N

This appeal involves a personal injury action in which the plaintiff sought

to file a separate suit against previously unknown defendants in accordance with

Tenn. Code Ann. § 20-1-119 (1994). The Fifth Circuit Court for Davidson

County granted the new defendants’ motions for summary judgment on the ground

that the complaint was filed one day late. The plaintiff asserts on this appeal that

the trial court erred by failing to extend the time for filing his amended complaint

by three days in accordance with Tenn. R. Civ. P. 6.05. We have determined that

Tenn. R. Civ. P. 6.05 does not extend the deadline for taking the actions required

by Tenn. Code Ann. § 20-1-119 and, therefore, affirm the trial court. 

I.

Franklin Shane Halstead worked as a maintenance supervisor at the Arbor

Creek Apartments in Nashville. While inspecting the premises on September 18,

1992, he discovered that one of the lights illuminating the tennis courts had

burned out. He was in the process of replacing the bulb when the top arm of the

light pole swiveled suddenly causing the ladder on which he was standing to slip

away from the light pole. Mr. Halstead fell from the ladder and was injured.

On September 17, 1993, Mr. Halstead and his wife sued the general

contractor who built the apartment complex and several other construction

companies. The general contractor filed an answer on March 8, 1994, asserting

that Mr. Halstead’s injuries were proximately caused by the negligence of other

parties, including Laing Properties, Inc. and Laing Arbors, Inc., the owner and onsite manager of the apartment complex, Niles-Bolton Associates, Inc. (“NilesBolton”), the architectural firm that designed the tennis courts, and Derek Barton

Company (“Derek Barton”), the company responsible for constructing the tennis

courts. Mr. Halstead and his wife filed a separate action against these parties on

June 7, 1994, in accordance with Tenn. Code Ann. § 20-1-119. 
1Laing Properties’s motion was based on the fact that it had settled the Halsteads’ claims.

2Ms. Halstead has elected not to pursue any of her claims, and Mr. Halstead has not

appealed from the dismissal of his claims against the owner and resident manager of the

apartments.

3Act of May 13, 1993, ch. 407, 1993 Tenn. Pub. Acts 699.

4McIntyre v. Balentine, 833 S.W.2d 52, 58 (Tenn. 1992).

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The newly named defendants moved for summary judgment. Niles-Bolton

and Derek Barton asserted that the Halsteads’ claims against them were not filed

within the time required by Tenn. Code Ann. § 20-1-119.1 The trial court granted

these motions after determining that the Halsteads filed their complaint one day

late. On this appeal, Mr. Halstead takes issue with the summary dismissal of his

claims against the architect and the tennis court contractor.2

II.

The statute of limitations for personal injury actions is normally one year.

See Tenn. Code Ann. § 28-3-104(a)(1) (Supp. 1995). In 1993, however, the

General Assembly enacted Tenn. Code Ann. § 20-1-119,3 in part to counteract the

erosion of the joint and several liability doctrine that accompanied the Tennessee

Supreme Court’s adoption of modified comparative fault.4 Tenn. Code Ann. § 20-

1-119 extends the applicable statute of limitations in comparative fault cases when

an original defendant alleges that “a person not a party to the suit caused or

contributed to the injury or damage for which the plaintiff seeks recovery.”

Tenn. Code Ann. § 20-1-119(a) permits a plaintiff to amend its complaint

or to file a separate complaint against a previously unnamed party “within ninety

(90) days of the filing of the first answer or first amended answer alleging such

person’s fault.” The first answer alleging the possible fault of persons other than

the original defendants was filed by Nashville Mid-South Contractors on March

8, 1994. Thus, Tenn. Code Ann. § 20-1-119(a) required the Halsteads either to

amend their complaint or to file a separate complaint on or before June 6, 1994.

The Halsteads’ second complaint was not filed until June 7, 1994 and was,
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therefore, untimely unless some other statute or rule extended the 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 Mid-South’s

answer by mail. Tenn. R. Civ. P. 6.05 provides:

Whenever a party has the right or is required to do some

act or take some proceedings within a prescribed period

after the service of a notice or other paper upon such

party and the notice or paper is served upon such party

by mail three (3) days shall be added to the prescribed

period. 

If the extra three days for service by mail applies to complaints filed in accordance

with Tenn. Code Ann. § 20-1-119, then Mr. Halstead’s second complaint would

be timely. 

Tenn. R. Civ. P. 6.05 applies only in circumstances where a party “is

required to do some act . . . within a prescribed period after the service of a notice

or other paper upon such party and the notice or paper is served upon such party

by mail.” By its own terms, it does not apply in circumstances where a party is

required to take some act within a prescribed period after the filing of a paper.

Accordingly, Mr. Halstead can find no solace in Tenn. R. Civ. P. 6.05.

Our view of the relationship between Tenn. R. Civ. P. 6.05 and Tenn. Code

Ann. § 20-1-119(a) is consistent with other precedents construing Tenn. R. Civ.

P. 6.05. We have held that the rule does not extend the period for perfecting

administrative appeals which must be filed within sixty (60) days after the entry

of the agency’s final order. Cheairs v. Lawson, 815 S.W.2d 533, 534 (Tenn. Ct.

App. 1991); Houseal v. Roberts, 709 S.W.2d 580, 581 (Tenn. Ct. App. 1984).

Likewise, it does not apply when the required action must be taken within thirty

days of the date of a notice. Copeland v. Bick, App. No. 01-A-01-9503-CV00114, slip op. at 3-4, 20 T.A.M. 39-27 (Tenn. Ct. App. Sept. 1, 1995) (No Tenn.

R. App. P. 11 application filed). Our interpretation is also consistent with the

federal courts’ interpretation of an analogous federal rule. See, e.g., Pizzichil v.
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Motors Ins. Corp., 90 F.R.D. 119, 121 (E.D. Pa. 1981) (“[W]here a statute

provides that the time for taking action begins to run as of the date of the filing of

an order, the fact that notice of filing was given by mail does not entitle the party

to the three-day extension provided by [Fed. R. Civ. P.] 6(e).”)

III.

Sensing the precariousness of his position, Mr. Halstead also asserts that he

is entitled to relief under Tenn. R. Civ. P. 6.02 if his complaint is held to be

untimely. Tenn. R. Civ. P. 6.02 empowers the trial court to extend the time for

taking an action “where the failure to act was the result of excusable neglect.” Mr.

Halstead cites no authority for his assertion that the trial judge erred in refusing

to grant him an enlargement of time under Tenn. R. Civ. P. 6.02, and we find no

reason to so hold. 

Decisions to grant relief under Tenn. R. Civ. P. 6.02 are discretionary with

the trial court. See Douglas v. Estate of Robertson, 876 S.W.2d 95, 97 (Tenn.

1994). We do not think the trial court abused its discretion by failing to extend

the time period for action under Tenn. Code Ann. § 20-1-119 under the facts of

this case. Although Mr. Halstead’s counsel may have genuinely misinterpreted

the application of Tenn. R. Civ. P. 6.05, we do not think such a mistake of law

provides a basis for extending the statute of limitations in comparative fault cases.

IV.

We affirm the order granting the summary judgment and dismissing Mr.

Halstead’s claims against Niles-Bolton Associates, Derek Barton Company, Inc.,

Derek Barton Company, Inc. d/b/a Derek Barton Tennis Courts, and Derek Barton

Tennis Courts with prejudice. We remand the case to the trial court for whatever

further proceedings may be required, and we also tax the costs of this appeal to

Franklin Shane Halstead and his surety for which execution, if necessary, may

issue. 
__________________________________

WILLIAM C. KOCH, JR., JUDGE

CONCUR:

__________________________________

HENRY F. TODD, P.J., M.S.

__________________________________

BEN H. CANTRELL, JUDGE