# FILED February 10, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE

EASTERN S ECTION

PATRICIA STEPH ENS and husband, ) C/A NO. 03A01-9708-CV-00351 CHRIS STEPHENS, ) ) LOUD ON CIR CUIT Plaintiffs-Appellants, ) ) HON . RUS SELL E. SIM MO NS, JR ., v. ) JUDGE ) REVCO DISC OUNT DRUG ) CEN TER S, INC ., ) AFFIRMED ) AND Defendant-Appellee. ) REMANDED

JOHN P. NE WTON , JR., McGEHEE & NEW TON, Knoxv ille, for PlaintiffsAppellants. BARRY K. MAXWELL and MARY JANE BORDEN , EGERTON, McAFEE, ARMISTEA D & DAV IS, P.C., Knoxvil le, for Defendant- Appellee.

O P I N I

O N Franks, J.

In this act

ion, the Tria

l Court granted summary judgment to defenda nt on the b asis that th e cause of actio n was barred by the on e-year statu te of lim itations. Plaintiffs have appealed. The complaint complains of defendant’s pharmaci st improperly filling a prescripti

on on the 22nd day of June,1991 for plainti ff Patricia.The complaint was fil ed on Fe

bruar y 18,1997, and th

e rec ord establ

ishe s tha t vir tual ly t he same complaint had previously been fi led on June 10, 1992 and was volunt arily di smissed2

on March 15, 1994, and again fil ed on February 18,1995 and voluntaril y dismissed on March 4, 1996.

Plaintiffs insists t hat the cause of act

ion sounds in contr

act, and hence, the six-ye ar statute of limita tions is a pplicab le.

The Supreme Court has said “act ion” as used in t

he statutes

of limitat

ion refers to and embodies

concepts of subject

matter and the nat

ure of the action is not determ ined by th e form of the c ompla int. Carney v. Smith , 437 S.W.2d 246 (Tenn. 1969). The rule is

well establi shed in this j urisdicti on that the gravamen of t he action, rather than its d esignation a s an action in tort or contrac t, determines the applicab le statute of l

imitations . This rule was re cently appl

ied by the Supre

me Court in Mike v. Po G roup, In c., 937 S.W.2d 796 (Tenn. 1996). The Court in that opinion at page 793, said: Since summary judgment was granted on the ground that the plaintiffs’

causes of action were ba rred by the one

year stat ute of limit

ations, t he Court must determine whic h statute of l

imitations

applies to t

he plaintiffs ’ suit, which de pends upon the nature of t he cause of action alleged. The grava

men of a complaint and the i njury all eged determine which statute o f limitatio ns app lies. Vance v. Schulder, 547 S.W.2d 927, 931 (Tenn. 1977). To as certain the gr avamen of the action,the Court m ust look to the ba sis for w hich da mage s are sou ght. Bland v. Smith , 197 Tenn. 683 , 277 S.W.2d 37 7, 379 (1955). The complaint in thi s cause alleges that defendant fi

lled a prescr

iption for Cariso prodol fo r Patricia, and a fter taking th e prescription she becam e violently ill and disco vered that “ penicillin w as placed in the bottle by the R evco pha rmacist in error, rat her than Carisoprodol , and taken by t he plaintiff

, proximately

causing her injury.” The co mplaint fu rther alleged that the defe ndant ow ed a duty of d ue care to plaintiffs in fillin g the prescr iption, and th at it breached the duty of ca re “by acting in a grossly negligent manner by giving penicil

lin to the plaintiff,rather than Carisoprodol.”

The complaint concludes that plaint

iff “was physic ally i

njured and suffered great pai

n and discomfort” and the plaintiff’ s damages were “as a direct and1

The husb and’s cl aim was fo r loss of consort ium.
3 proxim ate cau se of th e defe ndant’ s gross n egligen ce.” 1

The sum and substa nce of pla intiffs’ com plaint alleges to rtious cond uct, and wh en the rule th at the grava men of th e compla int determin es the applic able statute of limitat ions is appli

ed, it is clear that t

he Trial Judge act

ed properly i

n dismissing this complaint

on the grounds the one y ear statut e of limitat

ions barred the maintenance of this

action. Accordingly,we affirm the judgment of t he Trial Court and re

mand at appellants’ c ost.

__________________________ Herschel P. Franks, J.
CONCUR:

___________________________ Charles D. Susano, Jr., J.

___________________________ Don T. McM urray, J.