# FILED April 23, 1999 Cecil Crowson, Jr. Appe llate Court C lerk IN THE COURT OF APPEALS OF TENNESSEE,

AT JACKSON

_______________________________________________________ ) WARNER B. DUNLAP AND ) Gibson County Circuit Court WARNER B. DUNLAP, M.D., P.C. , ) No. H-2921 ) Plaintiffs/Appella

nts. )

) VS. ) C.A. No. 02A01-9801-CV-00025 ) RICHARD AYERS, GAULDIN & ) AYERS, S. C. & M. PROPERTIES, INC. ) AND TOM COPELAND , ) ) Defendants/App

ellees. ) )

______________________________________________________________________________ From the Circuit Cour

t of Gibson County at H

umboldt. Honorable Dick Jerman, Jr., Judge
Mimi Phillips , PHILLIPS, HOWARD & GRUBB, Memphis, Tennessee Attorney for Plain

tiffs/Appellants. Jerry O. Potter , CHAPMAN SELLERS MORROW, Memphis, Tennessee Attorney for Def

endants/Appelle

es Richard Ayers

and Gauldin & Ayer

s. Jerry Kizer, Jr. , Patrick W. Rogers , RAINEY, KIZER, BUTLER, REVIERE & BELL, P.L.C., Jackson, Tennessee Attorneys for Defendant/Appellee S. C. & M. Properties, Inc. Sam J. Watridge , Humboldt, Tennessee Attorney for Defendant/Appellee Tom Copeland.
OPINION FILED: REVERSED AND REMAN DED FARMER, J. CRAWFORD, P.J., W

.S. : (Concurs) HIGHERS, J. : (Concurs)In this action for accountant malpractice, Plaintiffs Warner B. Dunlap and Warner B. Dunlap, M.D., P.C., appeal the tr ial co urt’s order entering summary judgment in favor of Defendants/Appellees Richard Ayers, G auldin & Ayers, S. C.

& M. Properties, Inc., and Tom Copeland. We reverse the trial court’s judgment based upon our conclusion that the trial court erred in ruling that the Plaintiffs’ action against the Defendants was barred by the o ne-year statute of limitations applica

ble to accountan

t malpractice ac

tions.

For purposes of these summary judgment procee dings, th e following facts were undisputed. The Defendants are accountan

ts and accounting

firms which provid

ed services to Warner B. Dunlap and his Humboldt medical practice, Warne r B. Dun lap, M.D., P.C., during various periods between theearly 1980's and the mid 1990's. In January 1985, Richard Ayers, who then was employedby Gauldin & Ayers, discovered that Barbara Brown, an employee of Warner B. Dunlap, M.D., P.C., was embezzling money from the medical practice by writing herself extra paychecks. Insteadof firing Brown, Dunlap redefined Brown’s duties so th

at she no longer wo

uld be permitted to handle

money. Dunlap main

tained Brown as an

employee based,

in part, on his lifelong friendship with Brown’s husband, Tommy Brown. Dunlap also decided to keep Brown as
an employee based upon the assurances of Richard Ayers that he would closely monitor the medical practice account and that he would be able to

detect a ny further embezzlement by Brown. Thereafter, Dunlap made periodic inquiries of Ayers concerning the medical practice account and was assured “that everything was okay.”

Despite these precautions, Barbara Brown again began embezzling from the medical practice almost immediately. This time, instead of w riting hers elf extra paychecks, Brown emb ezz led money by stealing cash from the daily receipts and substituting checks for the cash. Although the record does not make clear pr

ecisely how this

method of embezzlement worked, Brown was able to hide her thefts for year

s in this manner because the bank account statements and the medical practice’s records each appeared to balance; however, if Dunlap or the accountants had compared the bank account statements with the medical practice’s records, such as the practice’s day sheet system, they quickly would have discovered discrepanciesbetween the two sets of records.1 According to SCM’s answer, Steele, Carter & Martin was a professional corporation.

Steele, Carter & M

artin, P.C., now is kn

own as S. C. & M. Proper ties, Inc. For purp

oses of this opinion, we will refer to both entities as “SCM.”

In October 1986, Gauldin

& Ayers was purchased by Steele, Carter & Martin (SCM), 1
a Jackson account

ing firm, when SCM’s

partners decide

d th at they wanted to open an office in Humboldt. In August 1987, Tom Co peland, an SCM

employee, began handling the medical practice account. According to Dunlap, one of SCM’s partners and Tom Copeland both assured Dunlap that they would continue to closely monitor the medical practice account to ensure that no employee, particularly

Barbara Brown, was embezzling from the practice. As did Ayers befo re them, the SCM partner and Copeland periodically assured Dunlap that “thing s were ok ay.” Based upon th ese assurances,

Dunlap began allo

wing Brown to handle

money again

in the medical practice

sometime in 1988. On occasion, Dunlap also asked Brown to make deposits into his personal bank account. In June 1990, Tom Copeland purchased SCM’s Humboldt operation, and he personally continued to handle the medical practice account.

Dunlap kept a key to his post office box in th e medical practice’s office. Medical practice employees, including Barbara Brown, used the ke

y to retrieve both Du

nlap’s personal m

ail and the medical practice’s mail from the post office. In June 1993, Dunlap instructed Brown notto go to the post office any more. D unlap explained that he wanted Brown concentrating on more complicatedtasks while lesser-paid employees ran errands, such as going to the post office. During the latter part of

1993, Dunlap became suspicious that he was not re ceiving all of his ma

il because he had failed to receive bills for his credit card and an insurance premium. In December 19 93 , therefore, Dunlap had the lock on his post office box changed, and he retained the only key.

On Monday, December 13, 1993, Dunlap opened his post office box and found the bank statement for

his personal bank account. Upon examining the bank statement, Dunlap noticed a discrepancy in

a deposit ticket. T

he deposit ticket s

howed that check

s in the amount of

$160.87 and $544.72 we re deposited, that $1000 in cash was received, and that a total of $705.59 was deposited. Dunlap immediately recognized that these numbers “didn’t add up,” and he questioned how someone could have received $1000 in cash while still making a net deposit of $705.59
. Dunlap recogniz

ed Barbara Brow

n’s handwriting on

the deposit ticket,

but he did

not believe that2 See T.R.C.P. 41.01.

Brown had written the $1000 figure in the cash received space. Consequently, Dunlap went to the bankand asked bank employee Sammy Morello to explain the discrepancy. Per Morello’ s instructions,

Dunlap returned

to the bank on December 16, 1993. On that day, Dunlap learned that
a check for $1,160.87, and not $160.87, was deposited, that the $544.72 check was stolen from the medical practice, and that the person making the deposit did receive $1000 in cash.

Upon learning this information, Dunlap confronted Barbara Brown, who ultimately admitted the theft of $1000 in cash. In the weeks following D ecember 16, 1993 , Dunlap’s own aud it of the medical practice account revealed that Brown had employed similar practices to engage in a p attern of emb ezzlement from t he medical prac

tice since Janua

ry 1985. Dunlap’s

audit revealed t

hat, from 1985 to 1993, Brown had stolen in excess of $50,000 from the medical practice.

Consequently, on December 16, 1994, the Plaintiffs filed a complaint for accountant malpractice again st the D efendants. Although the record does not make clear when the Plaintiffs filed their summonses, the record indicates that the summonses were issued on December 27, 1994.

The Plaintiffs nonsuited their first action, 2 but they filed another co mplaint against the Defendants in December 19 95. In their respective answers, the Defendants raised various affirmative defenses, including the statute of limitations. The Defendants also moved for summary judgment based upon the statute of limitations and other grounds.

The trial court granted the Defendants’ motions for summary judgment, a nd this appeal followed. In ente

ring summary judgme

nt in favor of the D

efendants,

the trial court

ruled that the Plaintiffs’ ca

use of action accrued on December 13, 1993, and, thus, that the Plaintiffs’ action
was barred by the one-year limitations period b ecause the action was not c ommenced until December 16, 1994. On appeal, the Plaintiffs contend that this ruling was in error.

In rev iewing the trial c

ourt’s decision, w

e are reminded t

hat summary judgme

nt i s appropriate

only when the par ties’ “pleadings, depositions, answers to interrogatories, andadmissions on file, together with the affidavits, if an y, show that there

is no genuine issue a

s to any material fact and that the

moving party is entit

led to a judgment as a matter of law.” T.R.C.P. 56.04. I n determining whether or not a genuine issue of material fact exists for purposes of sum mar y judgment, the trial court is required to consider the que stion in the same manner as a motion for directed verdict made at the close of the plaintiff’s proof. Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993). That is, “the tria

l court must take the

strongest legitima

te view of the evid

ence in favor of the nonmoving party, a

llow all reasonab le inferences i n favor of that pa

rty, and discard a

ll countervailing evidence.” Id . at 210-11.

The statute of limitatio

ns for accounta

nt malpractice a

ctions is the same as the sta tute of limitations for lega

l malpractice ac

tions. The statute p

rovides that malpr

actice actions a

gainst attorneys, licensed public a ccountants, and c

ertified public a

ccountants “sha

ll be commenced

within one (1) year after the cause of action accrued.” See T.C.A. § 28-3-104(a)(2) (Supp. 1993). In the present cas e, the parties agre

e that the dispositio

n of the statute of

limitations issue nec

essitates a determination of when the Plaintif fs’ cause of ac

tion against t

he De fendants accrued and, further, that this determination should be made by applying the discovery rule.

Our supr eme cou rt recently explained the application of the discovery rule in the context of legal m

alpractice ac

tions:

When the cause of ac

tio n accrues is determined by applying the discovery rule. Under this rule, a cause of action accrues when the plaintiff knows or in the exercise of reas onab le care and diligence should know that

an injury has been sustained as a result of wrongful or tortious conduct

by the defendant. Shadrick v. Coker , 963 S.W.2d 726, 733 (Tenn. 1998); Stanbury v. Bacard i , 95 3 S.W.2d 671, 677 (Tenn. 1997). In legal malpractic

e cases, the discovery rule is composed of two distinct elements: ( 1) the plaintiff mu st suffer legally cognizab

le damage -- an actual injury -- as a result of the defendant’s wrongful or negligent conduc

t, and (2) the plaintiff must have known or in the exerci se o f reasonable diligence should have known that this injury was caused by the defendant’s wrongful or negligent cond u ct. Carvell v. Bottoms , 900 S.W.2d 23, 28-30 (Tenn. 1995).

John Kohl & Co. v. Dearborn &Ewing , 977 S.W.2d 528, 532 (Tenn. 1998). After discussing the injury component

of the discovery rule, the court then addressed the ru

le’s knowledge c

omponent:T he knowledge component of the discovery rule m ay b e established by evidence of actua l or c onstructive knowledge of the injury. Carvell , 900 S.W.2d at 29. Accordingly, the statute of limitations begins to run when the plaintiff has actual knowledgeof the injury as where, for example, the defendant admits to h avin g committed malpractice or the p laintiff is info rmed by another attorney of the malpractice. Under the theory of constructive knowledge, however, the sta

tute may begin to run at

an earlier date -- whenever the plaintiff becomes aware or reasonably should have become aware of facts sufficient to put a reasonable person on notice that an injury has been sustained as a res ultof the defendant’s negligent or wrongful conduct. Id . We have s tres sed, however, that there is no requirement

that the plaintiff

actually know the specific type of legal claim h e or she has, or th

at the injury const

ituted a breach o

f th e appropriate

legal standard. Shadri

ck , 963 S.W.2d at 733. Rather, “the plaintiff is deemed to have discovered the right of action if he is aware of factssufficient to put a reasonable person on notice that he has suffered an injury as a result of wrongful conduct.” Carvell , 900 S.W.2d at 29 (quoting Roe v. Jefferson , 875 S.W.2d 653, 657 (Tenn. 1994)). “It is knowledge of facts sufficient to put a plaintiff on notice that an injury has been sustained which is crucial.” Stanbury , 953 S.W.2d at 678.

John Kohl & Co. , 977 S.W.2d at 532-33; see also Tanaka v. Meares , 980 S.W.2d 210, 213 (Tenn. App. 1998).
Citing the foregoing lan guage from John Kohl & Co. , the Defendants in this case insist that the Plaintiffs’ ca

use of action accrued on December 13, 1993, because on that date Dunlap
was awareof facts which

were sufficient to put a reasonable person on notice that the Plaintiffs had sustained an injury as a res ult of wrongful co

nduct. We disagree with this contention because, after carefully reviewing the record, we con clude that a genu

ine issue of mater

ial fact exists as

to whether Dun lap knew or should hav e known on Decemb

er 13, 1993, that th

e Plaintiffs had su

stain ed a n injury as a

result of wrongful conduct. Moreover, we conclude that a genuine issue of material fact exist s as to whether Dunlap knew or should have known, even on December 16, 1993 , that th e Plaintiffs’ injury was the result of the Defendants’ wrongful conduct, as opposed to Barbara Brown’s wrongful conduc

t.

In discussing the disc

overy rule, the su

preme court has spoken in terms of w hat facts
are sufficient to put a reasonable person on notice that he has suffered an injury “as a result of wrongful conduct.” John Kohl & Co. , 977 S.W.2d at 533; Car vell , 900 S.W.2d at 29; see also Terry v. N

iblack , 979 S. W.2d 583, 586 (Ten n. 1998). The Def

endants appear

to be citing thislanguage for the proposition that the Plaintiffs’ cause of a ction accrued on December 13, 1993,

because on that date Dunlap should have discovered that the Plaintiffs had suff

ered a loss as a

result of Barbara Brown’ s wrongful conduc t. In its decisions,

however, the supreme court also has stressed that, before the discovery rule can trigger the commencement of the limitations period, the facts must be suffic ient to p ut a reasonable person on notice that he has suffered an injury “as a result of the defendant’s negligent or wrongful conduct.” John Kohl & Co. , 977 S.W.2d at 532 (citing Carvell , 900 S.W.2d at 29) (e

mphasis added); accord Tanaka , 980 S.W.2d at 213.

As previously discuss

ed, the evidence

in this c ase reve aled that on December 13, 1993, Dunlap discovered a discrepancy in a deposit ticket accompanying the statement for hi s personal bank account. The deposit ticket showed that checks in the amount of $160.87 and $544.72
were deposited, that $10

00 incash was recei

ved, and that a

total of $705.59 was deposited. Dunlap observed that the numbers on the ticket “didn’t add up,” and he questioned how someone could have received $100 0 in cash while still making a net deposit of $705.59. Dunlap recognized Barbara Brown’s handwriting on the deposit ticket, but he did not believe that Brown had written the $1000 figure in the cash received space. Consequently, Dunlap went to the bank and asked bank employee Sammy Morello to explain the discrepancy. Upon returning to the bank on December 16,1993, as directed by Morello, Dunlap learned that a check for

$1,160.87, and not $160.87, was deposited, that the $544.72 check was stolen fromthe medical prac tice, and that the

person making the d

eposit did receive $1000 in cash. This discovery led Dunlap to confront Barbara Brown, who admitted the theft of $1 000 in cash. In the weeks following D

ecember 16, 1993 , Dunlap’s own aud it o f th e medical practice account

revealed that Brown had employed similar practices to engage in a pattern of embezzlement from the medical practice since January 1985.

From this evidence, we conclude that a reasonable person could find that on December

13, 1993, Dunlap neither knew nor should have known that the Plaintiffs had sustained
an injury as a result of the Defendants’ wrongful conduct. Although Dunlap knew on that date that
a discrepancy ex

isted relativ

e to a deposit to his personal banking account, Dunlap did not know until December 16, 1993, that the P lain tiffs in fact had sustained a loss. Moreover, even on December

16, 1993, Dunlap did

not know that the Pla

intiffs’ loss was so

me how rel ated to the Defendants’ wrongful conduct. Although Dunlap knew on that date that the Plaintiffs had sustained3 In this regard, we note that the negligence complained of in this case was that the

Defendants failed to follow accepted accounting procedures and practices in their ha ndling of the medical practice account and that, as a result, they failed to discover Barbara Brown’s embezzlement. T

he theft which Dun

lap discovered o

n December 16, 1 993, was so rece nt that, even with the exercise of due care, the Plaintiffs’ accountant might not have had the time or opportunity to disco

ver it. a loss as a result of Barbara Brown’s conduct, he did not know until he performed his own audit of the medical practice account in the ensuing weeks that the loss was not an isola ted incident but, rather, represented part of a pattern of conduct by B row n which had gone undetected by the Defendants over

a period of year

s. 3

In urging this court to

affir m the trial court’s judgment, the Defendants argue that Dunlap should have known of Barbara Brown’s embezzlement on December 13, 1993. In support of this argument, the Defendants point to the facts of Brown’s prior embezzlement from the medical practice during the early 1 980's, Dunlap’s su spicion in late 1993

that he was not re

ceiving all of his mail, and a theft of prescription c o caine from his office in 1991. In our view, however, these are arguments

which should be made to the finder of fact a t trial. At this

point in the procee

dings, these facts do not establish as a matter of law that on December 13, 1993, or even December 16, 1993, Dunlap either knew or should have known that the Plaintiffs had sustained a loss as a result of the Defendants’ wrongful conduct. Accordingly, we reverse the summary judgment entered by the trial court, and we re

mand for further

proceedings.

In reversing the trial c ourt’s summary judgment, we point out that situations may exist when a plaintiff d

oes not possess suff

icient informatio

n to co mmence the running of the limitations period but, at

the same time, he does possess sufficient information to trigger a duty on his part to deter mine, with due diligence, whether he has been harmed by another’s wrongful conduct. See, e.g. , Terry v. Niblack , 979 S.W.2d at 586- 87; see also Wyatt v. A-Best Co. , 910 S.W.2d 851, 856 (Tenn. 1995). This case may present such a situation. When viewed in the light most favorable to the Plaintiffs, the information learned by Dunlap on December 13, 1993, and on December 16, 1993, did not commence the running of the limitations peri

od as to the Defen

dants, butit did trigger a duty on Dunlap’s part to determine, with du

e diligence, whe

ther facts existe

d to support a legal c ause of actio

n against the Def

endants. If Dunla

p’s testimony is beli

eved, this is precisely the duty he undertook in the weeks following December 16, 1993.4 Rule 3 no longer requires the plaintiff to file a summons in addition to a complaint.

Cary v. Bourne , No. 02A01-9511-CV-00263, 1997 WL 585750, at *5 n.3 (Tenn. App. Sept. 23, 1997) (citing T.R.C .P. 3 advisory commis sion comment). The rule was amende

d in 1997 to provide that “[a]ll civil actions are commenced by filing a complaint with the clerk of the court.” T.R.C.P. 3. On appeal, Defendant s Richard Ayers a nd Gauldin & Ayers insist that the trial court’s summary judgment should be a ffirmed as to them

because th

e evidence showed that, after Ayers informedDunlap of Barbara Brown’s embezzlement in January 1985, Dunlap did not allow Brown to handle money again until 1988 and, further, that Dunlap did not depe

nd upon Ayers to

detect any embezzlement

by Brown after Oc

tober 1986, when A

yers and his acc

ounti ng firm ceas ed performing services for

the Plaintiffs. We reject this ar gument because,

when viewed in the

light most favorabl

e to the Plaintiffs, the evidence demonstrated that, although Brown was not supposed to handle money for the medical prac

tice between 198

5 and 1988, Br

own had suffi cient contact with the medical practice’s funds to begin embe zzlin g a gain as early as J anuary 1985. The

evidence also demonstratedthat Brown’s practice of embezzling funds from the medical practice by substituting checks for cash went undetected by Ayers and the other

accountants until Dunlap himself learned of it in December 1993. Defendants Ayers and Gauldin & Ayers provided accounting services to the Plaintiffs bet ween

January 1985 and October 1986, which covered approximately twenty months of the nine-year period in dispute in this case.

The D e fendants also have raised an issue on appeal, contending that the one-year limitations period began to run, at the latest, on December 16, 1993, and, thus,

the Plaintiffs’ action still was not timely c

ommenced becau

se the Plaintiffs f

ailed to filethe required summonses when they filed their original complaint on December 16, 1994. At the time the Plaintiff s filed their complaint, rule 3 of the Tennessee Rules of Civil Procedure provided that “[a]ll civil actions are commenced

by f iling a complaint and summons with the clerk of the court.” T.R.C.P. 3 (as amended effective July

1, 1992) (emphasi

s added). In dec

isions construing th

is version of rule

3, 4 this court has held that an action is not c ommenced for statute of limitations purposes until the plaintiff has file

d both a complaint a

nd a summons.

I n Cary v. Bourne , No. 02A01-9511-CV-00263, 1997 WL 585750, a t *1 (Tenn. App
. Sept. 23, 1997), for exa

mple, Ca ry’s ca use of action acc

rued on May 26, 199

4. Cary filed hisoriginal complaint on May 3, 1995, but he did not file a summons as required by rule 3 until May 30,

1995. Cary v. B ourne , 199 7 WL 585750, at *5. This court held that Cary’s action was not commenced

until May 30, 1995, and, thus, that the action was barred by the o ne-year statute of limitations applicable to medical malpractice claims. Id
. Similarly, in Johnson v. Fortunes Untold, Inc. , No. 03A01-9710-CV-00464, 1998 WL 379186, at *1 (Tenn. App. July

8, 1998), the plain

tiffs’
cause of action accrued on May 2, 1996. The plaintiffs filed their complaint on May 2, 1997, but they did not file the summons until May 5, 1997. Johnson , 1998 WL 379186, at *1. This court held that the plaintiffs’ action was not commenced until May 5, 1997, and, thus, that it was barred by the one-year statute of limitations for personal injury claims. Id
.

Insisting that the Plai n tiffs’ cause of action in this case accrued, at the latest, on December

16, 1993, the Defendants seek to draw a parallel between the foregoing cases and the present one . The Plaintiffs filed their original complaint on December 16, 1994. Unlike the complaint, the summonses failed to indicate when they were filed because they did not contain the court clerk’s endorsement as to the date and hour of the filing as required by rule 5.06. See T.R.C.P. 5.06. The summonses merel y indicated that they were issued on December 27, 1994. Relying on the foregoing c ases, therefor

e, the Defendan

ts contend that the

Plaintiffs in this

case did nottimel y c ommence their ac tion because they

did not file the summo

nses when they fil

ed their complaint on December 16, 1994.

We conclude that this arg ument is without merit . As previously discussed, we decline to hold as a matter of law that theone-year limitations period began to run on December 16, 1993. Moreover, contrary to the Defendants’ contention, the reco rd contains no evidence that the
summonses were notfiled when the original complaint was filed on December 16, 1994. Dunlap filed an af

fidavit in this case which,

when construed in

the light most favor

able to the Plaintif

fs, indicated that Dunlap delivered both the original complaint and the summonses to the court clerk’s office on December 16, 1994, and no evidence was submitted to contradict this affidavit. Although the summonses failed to indicate a filing date of December 16, 1994, they also did not contain any other filing date w

hich would have c

ontradicted the Pl

aintiffs’ assertion that the summonses were filed on December 16, 1994. For whatever reason, the court clerk did not endorse the summonses by indicating thereon the date and hour the summonses were filed.5 The cited language of rule 5.06 has changed slightly since this lawsuit began. See

T.R.C.P. 5.06. Acco

rding to the compile

r’s notes to the Mic

hie edition of the r

ules, our supreme court made gender-neutral amendments to rule 5 and other rules in 1995.

In contending that the Plaintiffs did not prope rl y file the summonses with the complaint on December 16, 1994, the Defendants foc us on th e following langua ge found in rule 5.06:

The filing of pleadings and other papers with the c

ourt as required by [the Tennessee Rules of Civil Procedure] shall be made by filing them with the clerk of the c ourt , except that the judge may permit the papers to be filed with him, in which event he shall note thereon the filing date and forthwi

th transmit them to

the office of theclerk. The clerk shall endorse upon eve

ry pleading and

other papers filed w

ith him in an action the date an d hour of the filing
. . . .

T.R.C.P. 5.06 (as amended effective July 1, 1993) (emphasis added). Citing this la nguage, 5 the Defendants

contend that the summonses were not filed on December 16, 1994, because they failed to contain the clerk’s endorsement indicating December 16, 1994, as the date of filing.

We disagree with the D efendants’ contentions on this issue. A pleading or other paper “is deemed filed whe n [it is] handed to a person in the clerk’s office to receive it, and the failure of the clerk or deputy to properly mark it filed should in no w

ay prejudice the

partyfiling it.” Rush v. Rush , 37 S.W. 13, 14 (Tenn. 1896) (citing Montgomery v. Buck , 25 Tenn. (6 Hum.) 416 (1846)). Stated another

way, if a litigant timely places a pleading or other paper in the possession of a court clerk em

ployee, the employ

ee’s failure to m

ark it filed is not f

a tal to the litigant’s subsequent

argument that the

paper was time

ly filed. See Fry v. Cermola , No. 03A01-9507-JV-00246, 1996 WL 30903, at *3 (Tenn. App. Jan. 29, 1996); City of Gatlinburg v. Bell , No. 03A01-9412-CV-00431, 1995 WL 114186, at *3 (Tenn. App. Mar. 17, 199 5). In construing virtually identica l language found i

n the Tennessee R

ules of Crimin

al Procedu re, our Courtof Criminal Appeals has indicated that “the receipt of

the pleading by the clerk constitutes the filing and not the cler k’s endorsement of the date and time.” State v. South , No. 02C01-9502-CR-00051, 1997 WL 227988, at * 2 n.1 (Tenn. Crim. App. May 7, 1997) (construing Tenn. R. Crim. P. 49(c)).6 In light of our rev ersal of the tria

l court’s judgment,

we pretermit the

Plaintiffs’ remaining issue concerning the trial court’s denial of their motion to alter or amend the judgment. See T.R.C.P. 59.04.

We hold that the summons es in this case were f

iled within

the meaning of rule 5.06 when Dunlap delivered them to an employee of the court clerk’s of

fice. The only ev

idence in the record on this issue indicates that this delivery took plac

e on December 16, 1994, when Dunla p also delivered the original complaint. Accordingly, we conclude that the Plaintiffs timel

y commenced this action on December

16, 1994, despite the court clerk’s failure to mark the summonses filed on that date.

The trial court’s ord er granting the D

efendants’ moti

on s for summary judgme nt is reversed, and this cause is remanded for further proceedings consistent with this opinion. 6 Costs of this appeal are taxed to the Defendants, for which execution may issue if necessary.

____________________________________ FARMER, J.

______________________________ CRAWFORD, P.J., W.S. ( Concurs)

______________________________ HIGHERS, J. (Concu

rs)