### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE October 2, 2000 Se ssion E.L. BILLINGSLEY AND ONEIDA FARMS, INC. v. ALVIN D. ESCUE

Direct Appeal from the Circuit Court for Knox County No. 1-550-99 Hon. Dale C. Workman, Circuit Judge

FILED NOVEMBER 17, 2000 No. E2000-00463-COA-R3-CV

The Trial Judge granted defendant summary judgment on grounds the action was time-barred. We affirm. Tenn. R. App. P.3 Appeal as of Right; Judgmen

t of the Circuit C

ourt Affirmed.

H ERSCHEL P ICKENS F RANKS , J., delivered the opinion of the court, in which H OUSTON M. G ODDARD , P.J., and D. M ICHAEL S WINEY , J., joined.

Charles A. Wagner, III and W. Turner Boone, Knoxville, Tenn essee, f or Appellants, E.L. Billingsley and Oneida Farms, Inc. W. Morris Kizer, Knoxville, Tennessee, for Appellee, Alvin D. Escue.

OPINION

Plaintiffs’ Malicious Prosecution action, was dismissed by the Trial Judge on the grounds that it was time-barred by Tennessee Code Annotated §28-3- 104(a)(1).

On April 1, 1998, Escue and Oneida Wood Prod uc ts, Inc. brought an action,-2-

including E.L. Billingsley and Oneida Farms, Inc., as defendants, on the basis of alleged violations of the Federal Racketeer Influenced and Corr upt Organizations Act. Defendants

in that case moved for or a more definite statement, and an Agreed Order was entered, which provided that Escue and Oneida Wood would file an amended complaint.

On August 6, 1998, Escue and Oneida Wood filed a Case Statement which stated that most of Escue’s claims were

de rivative and the a

mended Complaint wo

uld eliminate Escu

e as a part y. On the same date Oneida Wood filed the Plaintiff’s Amended and Restated Complaint which didnot list Escue’s name in the caption, and stated that it “is filed pursuant to the Agree Order on Motions for Case

Statement and/or More Definite Statement entered in this matter.” Escue was not named as a plaintiff in the Amended and Restated Complaint and sought no relief therein.

Billingsley

and Oneida Farms filed a motion for additional time on August 19, 1998. By letter dated August 27, 1998, couns e l for Billingsley stated to Escue’s counsel that “Your Am ended a nd Restated Complai nt makes clear th

at Alvin Escue is a

bandoning his cla

ims against the defendants. Therefore, it is appropriate for you to fil e a Stipulation of Di smissal on Alvin Escue’s behalf.” On September 3, 1998, Escue filed a Notice of Dismissa

l pursuant to

Rule 41(a)(1) of the Federal Rules of Civil Procedure.

Then on August 30, 1999, Billingsley a nd Oneida Farms

filed the present malicious prosecution action against Escue, and on motion of Escue the Trial Judg e entered an Order of Dismissal. An action for malici ous prosecution mus

t be commenced wi

th in one y ear after the cause of action accru

ed. Tennesse

e Code Annotated § 28-3-104(a)(1) (Supp. 1999). A cause of action for malicious prosec ution accrues when the other elements of the offense are present, and when the malicious suit is t erminated in

the defendant’s favor. Christian v. Lapidus , 833 S.W.2d 71, 73 (Tenn. 1992) ; Rosen v. Levy , 120 Tenn. 642, 648, 113 S.W. 1042, 1044 (1908).

The crucial elemen

t in play in this

actio n is that the prior ac tion was terminate

d in favor of the plaintiff. Christian , at p.73. In Christian , the Tennessee Supreme Court held that the abandonment

of a civil action satisfies the third element, “final and favor

able termination,” so as to commence the running of the one-year statute of limitations. Id. at 74.

The Christian Courtmakes clear that an amended complaint supersedes the original complaint, rendering the original com pla int of n o le gal e ffec t. A ccor din gly, Christian controls the present case. The original complaint in the Federal action was filed on April 1, 1998, and in August of 1998, Oneida Wood Pr oducts filed the Pla

intiff’s Amended and Restated Complaint. The attorney who was counsel to

both Escue and One

ida Wood, does not sta

te that he was signing solely on behal f o f Wood. The Amended Complaint does not incorporate or refer back to the original complaint, and has the effect of superceding the original, rendering it of no legal effect. In accord with Christian , the legal effect of the Amended Complaint was to remove-3-

Escue from

the laws uit and constituted an abandonment by

Escue of his RI

CO claims agains

t Billingsley

and Oneida Farms. As such, the statute of limitations began to run from the time of abandonment,

or the filing of

the Amended Complaint, and not the subsequent filing of the Rule 41 notice of dismissal.

While appellants argue strenuously that their time did not begin running until Escue filed his notice of dism

s isal pursuant to Rule 41(a) of the Federal Rules of Civil Procedure, the language of Rule 41(a)(1) is permissive in that it does not state that it is the only

way to volunt

arily dismiss an action. Appell ants argue, how

ever, that it

is the only metho d, citing Oglala Sioux Tribe v. Homestake Mining Co. , 722 F.2d 1407 (8th Cir. 1983). Appellants ’ reliance on tha t c ase is misplaced. In tha

t case, the Court noted that the Oglaga Sioux Tribe did nothing to obtain a dismissal under Rule

41, nor did they

give any t

ype of notic

e that they d

id not intend to be a

party to that prio

r litigat ion. 722 F.2d at 1413-1414. Therefore, the Court found, the Oglala Sioux rem ain ed a p art y thr ough out the lit igat ion and were bou nd b y res judicata

. Id . at 1414.

In this case, not only was Escue’s intention clear, but the amended complaint that was filed had the effect o

f removing him fr

om the lawsuit, and a

s Christian rec ognized an a mended complaint could have the effect of dismissing an action by rendering the first complaint of

no legal effect. Appellants reliance on Lynch v. New Deal Delivery Service, Inc . , 974 F. Supp. 441 (D.N.J

. 1997) is equally unavailing. In Lynch , the Plaintiff attempted to “withdraw” one of her counts by way of a

footnote in the argument section of her brief in oppos

ition to summary

judgment. The Court held that she c

ould not voluntarily

dismiss a claim

in this manner. Id. at 455. Appellants in this case c ontend that ac cording to this holding in Lynch , “The short remark on page 16 of the CaseStatement was also

not sufficient to

dismiss Escue from the RICO Action under Rule 41(a).” The Trial Court di d not base it s decision on this remark, but he found that the amended complaint superceded the original complaint, thus constituting an a bandonment,the basis of w hic h wa s es tab lis hed by Christian.

Furth er, appellants argue that Escue is equitably and judicially estopped from claiming that he voluntarily dismissed his Rico Action at any time before September 3, 1998 when he filed his notice of dismissal pursuant to the Federal Rules. We note that estoppel was not raised by the parties at the trial level, and the issue of estoppel may not be raised fo r the first time on appeal. See Lawrence v. Stanford, 655 S.W.2d 927, 929 (T enn. 1983). Howe

ver, appellants

argue that while they did not use the term “estoppel”, the substance of their argument included estoppel. We find no support for this contention in the record. Their position in the T rial Court was that a dismissal must conform to the exact language of Rule 41 and there is no othe r w ay for a pa

rty to voluntarily

end his action. Moreover, Escue made his position clear to appellants at the

time of the filing of the Amended Complaint, and there was no change in positionto mislead appellants so as to create an estoppel.

For the foregoingreasons, we affirm the judgment of the T

rial Court and asse

ss cost-4-

of the appeal to E.L. Billingsley and One ida Farms, Inc.

_________________________ H ERSCHEL P ICKENS F RANKS , J.