IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

 October 2, 2000 Session

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; Judgment of the Circuit Court Affirmed.

HERSCHEL PICKENS FRANKS, J., delivered the opinion of the court, in whichHOUSTON M.GODDARD,

P.J., and D. MICHAEL SWINEY, J., joined.

Charles A. Wagner, III and W. Turner Boone, Knoxville, Tennessee,for 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 Products, 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 Corrupt 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 derivative and the amended Complaint would eliminate Escue as a

party. On the same date Oneida Wood filed the Plaintiff’s Amended and Restated Complaint which

did not 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, counsel for Billingsley stated to Escue’s counsel that “Your

Amended and Restated Complaint makes clear that Alvin Escue is abandoning his claims against

the defendants. Therefore, it is appropriate for you to file a Stipulation of Dismissal on Alvin

Escue’s behalf.” On September 3, 1998, Escue filed a Notice of Dismissal pursuant to Rule 41(a)(1)

of the Federal Rules of Civil Procedure. 

Then on August 30, 1999, Billingsley and Oneida Farms filed the present malicious

prosecution action against Escue, and on motion of Escue the Trial Judge entered an Order of

Dismissal.

An action for malicious prosecution must be commenced within one year after the

cause of action accrued. Tennessee Code Annotated § 28-3-104(a)(1) (Supp. 1999). A cause of

action for malicious prosecution accrues when the other elements of the offense are present, and

when the malicious suit is terminated 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 element in play in this action is that the prior action was terminated 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 favorable termination,” so as to

commence the running of the one-year statute of limitations. Id. at 74.

The Christian Court makes clear that an amended complaint supersedes the original

complaint, rendering the original complaint of no legal effect. Accordingly, 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 Products filed the Plaintiff’s Amended and Restated Complaint. The

attorney who was counsel to both Escue and Oneida Wood, does not state that he was signing solely

on behalf of 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 lawsuit and constituted an abandonment by Escue of his RICO claims against

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 dismsisal 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 voluntarily

dismiss an action. Appellants argue, however, that it is the only method, citing Oglala Sioux Tribe

v. Homestake Mining Co., 722 F.2d 1407 (8th Cir. 1983). Appellants’ reliance on that case is

misplaced. In that case, the Court noted that the Oglaga Sioux Tribe did nothing to obtain a

dismissal under Rule 41, nor did they give any type of notice that they did not intend to be a party

to that prior litigation. 722 F.2d at 1413-1414. Therefore, the Court found, the Oglala Sioux

remained a party throughout the litigation and were bound by 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 of removing him from the lawsuit, and as Christian recognized an amended

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 opposition to summary judgment.

The Court held that she could not voluntarily dismiss a claim in this manner. Id. at 455. Appellants

in this case contend that according to this holding in Lynch, “The short remark on page 16 of the

Case Statement was also not sufficient to dismiss Escue from the RICO Action under Rule 41(a).”

The Trial Court did not base its decision on this remark, but he found that the

amended complaint superceded the original complaint, thus constituting an abandonment, the basis

of which was established by Christian. 

Further, 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 for the first time on

appeal. See Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn. 1983). However, 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 Trial Court was that a

dismissal must conform to the exact language of Rule 41 and there is no other way for a party 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 position to mislead appellants so as

to create an estoppel. 

For the foregoing reasons, we affirm the judgment of the Trial Court and assess cost
-4-

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

_________________________

HERSCHEL PICKENS FRANKS, J.