# FILED
June 26, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE

TERESA MELTON MOORE, ) WASHINGTON CIRCUI T ) Plaintiff/Appell

ant ) NO. 03A01-9802-C V-00063 ) v. ) HON. THOMAS J. SEEL Y, JR. ) JUDGE CHRISTA MILLION FEAT HERS ) and TRACY FEATHERS, ) ) REVERSED a

nd Defendants/Appellees ) REMANDED

Gary E. Br

ewer and Leslie

A. Muse, Morri stown, for Appell ant Robert D. Arnol

d, Johnson City,

for Appellees.


### O P I N IO N

INMAN, Senio

r Judge Plaintiff/Appellant [“Moore”] brought this action for personal injuries resulting from

an automobile ac

cident which occur

red on June 6, 1991. T

he trial court dism

issed the claim

as barred by the

statute of limi

tations. We reverse the

judgment for the reasons hereaf ter stated. Moore filed her first complaint in this cause [Docket # 14782] on March 13, 1992. An Order of vol untary nonsuit was ent ered on November 9, 1993. She filed a second complai nt [Docket # 16394] on June 22, 1994. Process issued for d efendant Christa Feat hers was returned marked “Moved, No2

Longer this Address, Out of State.” Process for defendant Tracy Fea thers was returned marked “Not At This Address , Unable to Locate.” Moore filed a third complaint, al so docketed # 16394, on Ju ne 20, 1995, and summons were served on June 28, 1995. Defendants answered and raised the af firmat ive de fense that t he sta tute o f limit ation s barr ed the claim. On October 31,1996

defendants filed a motion for sum mary jud gment, which was argued o

n November 10,

1997. The trial co

urt sustained the m

otion and dismissed Moor

e’s third com

plaint as time-

barred. Moore insists that the

trial court erre

d

“ . . . in dismi ssing this action as tim e barred where Compl aint # 16394 was filed on

6/22/94, where the

Summonses issued therewith were returned unserved on 6/27/94, and where the Plaintiff refileda Complaint

and two Summ

onses on 6/20/95, thereby ‘recomm encing’ the action within one ye ar of the filing of the original Complaint as mandated by Rule 3 of the then applicable Te nnes see Rules of Civil Procedure.” Our review of the

findings of fact ma

de by the trial Court

is de novo upon the record of the tr

ial Court, accompanied by a presumption of the correctnes s of the finding, unless the preponderance of the evidence is otherwise. T ENN . R. A PP . P., R ULE 13(d).. R. A PP . P., R ULE 13(d); Campbell v. Florida S teel Corp., 919 S.W.2d 26 (Tenn. 1996). But where there is no conflict in the evidence as to any material fa

ct, as in this case,

the question on appeal is one of law, and t he scope of review is de novo with no presumption of correctness acc

ompanying a chancellor's conclu sions of law. Union Carbide Corp. v . Huddleston, 854 S.W.2d 87 (Tenn . 1993)
. Upon entry of the

order of nonsuit of Mo

ore’s first com

plaint, the saving statute, Tenn. C

ode Ann. § 28-1-105,

took effect. Th

is statute provided the opportunity for Moore to commence a new action within one yea r.1 Rule 3 was amende d effective July

1, 1995. The Adviso

ry Commission Comment to the 1995 Amendment states: “Because the former rule created confusion between the one-ye ar recommencemen

t period and the on

e-year saving st

atute, the recom

mencement provis

ion is eliminated. The e

arlier six month re

issuance period i

s extended from si

x months to a full year.” However, this amended version is not subject to retroactive application. Gregory v. McCulley, 912 S.W.2d 175 (Tenn. App. 1995). 3 On June 22, 1994, wi

thin that one year

, Moore filed her

second complaint, but p

rocess was not ser

ved on the defendants.

Upon the return of process unserved, R ULE 3, T. R. C. P. took effect, which provided, at all times relevant: 1 RULE 3. COMMENCEMENT OF ACTION

All civil a ctions are comm enced by filing a

complaint and summons wi

th the clerk of the c

ourt. An action is commenced

within the mea

ning of any statute

of li mitationsupon such filing of a co mplain t an d summons,

whether pr

ocess be issued or not issued a nd whether proces s b e returned served or unserved. If process remains

unissued for 30 day s or if process is not served or is not ret urned w ithin 30 days from issuance, regardless of the reason, t he pla intiff cannot rely upon the original comm

encement to tol

l the statute of limitations unless the plaintiff either: (1) continues the action by obtaining issuance of new process within 6 months fr om issuance of t

he previous process or, if no process is sued, within 6 month s from the filing of the com

plaint and summ

ons, or (2) recomme

nces the action wit

hin 1 year from

the issuance of the original proc ess or, if no proce ss issued, within 1 year from

the filing on the original com plaint and summons. Moore filed her third complaint on June 20, 1995, and process was served on the defendants on Jun e 27, 1995. It is undisputed that Moo re failed to m

eet the statutory

time limit

ations of R ULE 3(1), since she did n ot issue new process

on her second com

plaint within six months of the r

eturn of the unserve

d process. There

fore, her third c

omplaint, filed with t he cle rk on J une 2 0, 199 5, is o nly vi able i f it sa tisfi ed the time2 One year after the nonsuit of the f

irst Complaint. 4 limitations of the the n-applicable Rule 3 (2), i.e., if it “recom mence[d] t

he action within one year

of the filing of the or

iginal process or, i

f no process issued, within 1 year from the filing on the original complaint and summons.” Defendants contend

that Moore “co

uld have filed a new

action and preserved her cau se of action. This she did not do and her ca use of action therefore expired on November 9, 1994.” 2 Moore insists that she

“complied

with the rule in ef

fect at the tim

e by refiling the complaint and summons on June 20, 1995, less than one year after the June 22, 1994 com

plaint was file, thus recomme ncing the action as required.” A plaintiff may timely

recommence an action by “ filing a new complaint,” Little v. Franceshini , 688 S.W.2d 91 (T enn. App. 1985); “

refiling the complaint,” Dukes v. Noe, 856 S.W.2d 403 (T enn. App. 1993), or “refiling an original complaint,” Fox v. Smith, Tenn. Ct. App. , W. S., T omlin, J., Ju

ne 19, 1984. In interpreting the meaning of “recomm ence,” the Sixth Circuit has interpreted our Rul

e 3, T.R.C.P ., in this regard t o mean that inas

much as the

commence

ment of an acti

on is begun by the fi

ling of a compla

int, the recommencement of an action likewise means the filing of a complaint

. Lee v. Crenshaw, 562 F.2d 380, 381-2 (6th Cir. 1977). The fact that the docket numbers on Moore ’s second and third complaints are the same is not significant; the re

quirement of f

iling a new com

plaint within one y

ear of the issuance of process

on the complaint filed on June 22, 1994 w as satisfied. The judgment of the trial court is reversed and the case is remanded for5

proceedings not inconsi stent with this opinion. Costs are assessed

to the appellee.

_______________________________ William H.

Inman, Senio

r Judge CONCUR:

______________________________ Herschel P. Fr

anks, Judge

_______________________________ Charles D. Susa

no, Jr., Judge