# FILED
June 30, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF AP PEALS OF TENNESSEE AT JACKSON

HENRY COLLIER, ) ) Plaintiff/Appellee ) Haywood Circuit No. 2954 ) vs. ) ) METHODIST HAYWOOD P ARK 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/App

ellants. )

APPEAL FROM THE CIRCUIT COURT OF HAYWOOD COUNTY

AT BROWNSVILLE, TENNESSEE

THE HONORABLE DICK JERMAN, JR., JUDGE
For the Plaintiff/Appellee : For the Defend ants/Appellants : Ricco Gatti, Jr. Gary K. Smith Charl es H. R ichar dson III William D. Domico Dixie White Ishee Bryant C. Wit t Memphis, Tennessee Memphis, Tennessee

REVERSED

HOLLY KIRBY L

ILLARD, JUDGE

CONCUR: W. FRANK CRAWFORD, P. J., W.S. DAVID R. FARMER, J.1 Tennessee Code A nnotated § 20-1-1 19 provides, in per tinent 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 statu

te of limitations, or

named in an amend

ed complaint filed

within the applicable st

atute of limitations , alleges in an ans wer or amended a

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

injury or damage f

or which the Plainti

ff seeks recove

ry, 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, with

in ninety (90) days

of the filing of the

first answer or f

irst amended answer

alleging such per

son’s fault, eithe

r: (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 b y 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 A pril 26, 1994. In his complaint, Collier alleged that he suffered personal injury as a result of neg

ligent 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 Compl aint on October 6, 1994, which set forth equival ent allegations a

gainst Dr. Lindsay and Metro Emergency Group, P.C. (“Metro”). Dr. Lindsay and Metro filed a motion fo r summary judgment or for judgment on the pleadings, allegin g that th e Amended Complaint was filed beyond the one (1) year limitation set forth in Tenn essee 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 compla

int 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 a

fter the answer

of the original de

fendants was file

d. Hals tea d argued that Tennessee Rule o

f Civil Procedure 6.05 allowed athree day extension to the applicable ninetyday period becaus e 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 pa per. 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 o

nly applies where

a party “is required to do some act . . . within a prescribed period after the service of a notice or other pa per upon such party an

d the notice or pap

er 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 rev

ersed, and the a

mended complaint a

gainst 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 CRAW

FORD, P. J., W.

S. DAVID R. FARMER, J.