FILED

June 30, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

 

HENRY COLLIER, )

)

Plaintiff/Appellee ) Haywood Circuit No. 2954 

)

vs. )

)

METHODIST HAYWOOD PARK HOSPITAL, ) Appeal No. 02A01-9607-CV-00165

INC., A Corporation; ROBERT LINDSAY, )

M.D.; METRO EMERGENCY GROUP, P.C.; )

and JOHN DOE, M.D., )

)

Defendants/Appellants. )

 

APPEAL FROM THE CIRCUIT COURT OF HAYWOOD COUNTY

AT BROWNSVILLE, TENNESSEE

THE HONORABLE DICK JERMAN, JR., JUDGE 

For the Plaintiff/Appellee: For the Defendants/Appellants:

Ricco Gatti, Jr. Gary K. Smith 

Charles H. Richardson III William D. Domico 

Dixie White Ishee Bryant C. Witt

Memphis, Tennessee Memphis, Tennessee 

 

 

 REVERSED

HOLLY KIRBY LILLARD, JUDGE

CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

DAVID R. FARMER, J. 
1

 Tennessee Code Annotated § 20-1-119 provides, in pertinent part:

(a) In civil actions where comparative fault is or becomes an issue, if a

defendant named in a original complaint initiating a suit filed within the

applicable statute of limitations, or named in an amended complaint filed within

the applicable statute of limitations, alleges in an answer or amended answer to

the original or amended complaint that a person not a party to the suit caused or

contributed to the injury or damage for which the Plaintiff seeks recovery, and if

the plaintiff’s cause or causes of action against such person would be barred by

any applicable statute of limitations but for the operation of this section, the

plaintiff may, within ninety (90) days of the filing of the first answer or first

amended answer alleging such person’s fault, either: 

(1) Amend the complaint to add such person as a defendant

pursuant to Rule 15 of the Tennessee Rules of Civil Procedure and

cause process to be issued for that person; or

(2) Institute a separate action against that person by filing a

summons and complaint. . . .

. . .

(c) This section shall neither shorten nor lengthen the applicable statute of

limitations for any cause of action, other than as provided in subsection (a). 

OPINION

This case involves an interlocutory appeal from an order by the trial court denying the

Defendant’s motion for Judgment on the Pleadings/ Motion for Summary Judgment. We reverse.

Plaintiff Henry Collier filed suit against the Defendant/Appellant Methodist Haywood Park

Hospital (“Hospital”) on April 26, 1994. In his complaint, Collier alleged that he suffered personal

injury as a result of negligent medical treatment by Hospital’s medical staff. Hospital filed an

answer on July 6, 1994. In the Answer, Hospital stated that Dr. Robert Lindsay, an independent

contractor physician, treated Collier at the time of his injury. Based on that averment by the Hospital

and pursuant to Tennessee Code Annotated § 20-1-119, Collier filed his Amended Complaint on

October 6, 1994, which set forth equivalent allegations against Dr. Lindsay and Metro Emergency

Group, P.C. (“Metro”). 

Dr. Lindsay and Metro filed a motion for summary judgment or for judgment on the

pleadings, alleging that the Amended Complaint was filed beyond the one (1) year limitation set

forth in Tennessee Code Annotated § 29-26-116, and beyond ninety days from the filing of the

Answer as set forth in Tennessee Code Annotated § 20-1-119.1 The defendants requested that the

cause of action against Dr. Lindsay and Metro be dismissed as untimely. The trial court denied the

motion, but granted permission to seek an interlocutory appeal to this Court. This Court granted the

defendants’ application for interlocutory appeal. 

On appeal from the grant or denial of summary judgment, we review the trial court’s decision

de novo, with no presumption of correctness. Presley v. Bennett, 860 S.W.2d 857 (Tenn. 1993). 
2

Tennessee Code Annotated § 20-1-119 sets a ninety-day time limit for plaintiffs who wish to amend

a complaint to add an additional defendant. Collier argues that although his amended complaint was

filed outside the ninety-day limit, the complaint is saved by Tennessee Rule of Civil Procedure 6.05,

which allows a three-day extension to the time limitation: “Whenever a party has the right or is

required to do some act or take some proceedings within a prescribed period after the service of a

notice or other paper upon such party and the notice or paper is served upon such party by mail three

days shall be added to the prescribed period.” With this three-day extension, Collier argues that the

amended complaint is timely filed. 

Defendants contend that this rule is inapplicable because it concerns the date of service, not

the date of filing. They cite Halstead v. Niles-Bolton Assoc., No. 01-A01-9503-CV-00113, 1996

WL 50861 (Tenn. App. Feb. 9, 1996), in which the plaintiff filed suit against previously unnamed

defendants ninety-one days after the answer of the original defendants was filed. Halstead argued

that Tennessee Rule of Civil Procedure 6.05 allowed a three day extension to the applicable ninetyday period because he received the original defendant’s answer by mail. This argument was

rejected:

By its own terms, it does not apply in circumstances where a party is required to take

some act within a prescribed period after the filing of a paper. Accordingly, Mr.

Halstead can find no solace in Tenn. R. Civ. P. 6.05. 

Halstead, at *2. Consequently, Tennessee Rule of Civil Procedure 6.05 only applies where a party

“is required to do some act . . . within a prescribed period after the service of a notice or other paper

upon such party and the notice or paper is served upon such party by mail. . . .” It does not apply

to situations in which a party must take some action after the filing of a notice or paper. 

Accordingly, the decision of the trial court is reversed, and the amended complaint against

the defendants Dr. Robert Lindsay and Metro Emergency Group, P.C. is dismissed with prejudice.

Costs on appeal are assessed against Appellee, for which execution may issue, if necessary.

 

HOLLY KIRBY LILLARD, J.

CONCUR:

 

W. FRANK CRAWFORD, P. J., W.S.

 

DAVID R. FARMER, J.