### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON August 17, 2016 Session

CHRISTINE GREENWOOD v. NATIONAL DENTEX CORPORATION, ET AL.

Appeal from the Circuit Court for Shelby County No. CT

- 001336

- 15 Jerry Stokes, Judge

___________________________________
No. W2015

- 01889

- COA

- R3

- CV

– File d August 30, 2016

___________________________________

This is a saving statute 1 case , Tennessee Code Annotated Section 28

- 1

- 105 . The trial court dismissed Appellant’s third product

- liability case , which was filed within one year of the dismissal of her second lawsuit, but more than one year after the entry of the initial nonsuit in Appellant’s first lawsuit. Discerning no error, we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed and Remanded

K ENNY A RMST RONG , J., delivered the opinion of the court, in which J OHN W. M C C LARTY , J. and D AVID R. F ARMER , S P . J.
, joined.

Christine Greenwood, Memphis, Tennessee, Pro Se.

Darrell E. Baker, Jr.
, Deborah Whitt, and M. Jason Martin, Memphis , Tennessee, for the appellees, National Dentex Corporation and Green Dental Laboratories, Inc.

OPINION

I. Background

1 Saving clause is the preferred form of this phrase generally, and particularly in admiralty law. We are dealing with statutory construction, not bank accounts, so saving is the precise word. * Savings clause is not an uncommon variant, but it is not as good because it (1) suggests financial savings and (2) makes savings a nominal rather than a participial adjective when the latter is more specific. Bryan A. Garner, A Dictionary of Modern Legal Usage 797 (3d ed., Oxford 2009).- 2

-

On January 5, 2009, Appellant Christine Greenwood filed a complaint
, pro se , against Green Dental Laboratories (“Case 1”). The case arose from the fabrication of dentures by Green Dental in 2007. After Ms. Greenwood filed Case 1, she added National Dentex Corporation as a party after discover ing that National Dentex was the parent corpo ration of Green Dental. On J a nuary 30, 2009, Green Dental filed a motion to dismiss for failure to give pre

- suit notice

. The trial court denied Appellees’ motion based on its finding that the assertions in the complaint could be construed as a claim for product liability. Shortly before the trial date, on March 12, 2013, Ms. Greenwood filed a notice of nonsuit as to Case 1. The order of nonsuit was entered on March 28, 2013

.

On March 28, 2 014, Ms. Greenwood re

- filed the case (“Case 2”) against Green Dental and National Dentex Corporation (together “Appellees”)

. However, the second complaint was not served on the Appellees. Instead, the complaint was served on the attorney who had
represen ted Appellees in the initial litigation. O n April 23, 2014, without ever issuing process on the named defendants
, Ms. Greenwood filed a notice of nonsuit as to Case 2. The trial court dismissed Case 2 by order of May 9, 2014.

On March 27, 2015, more tha n one year after entry of the initial nonsuit in Case 1, Ms. Greenwood re

- filed her action (“Case 3”)

. On April 13, 2015
, Appellees filed a motion to dismiss Case 3 on the ground that Ms. Greenwood’s claims were barred by the statute of limitations and statute of repose. Specifically, Appellees argued that Tennessee Code Annotated Section 29

- 28

- 103 define s the applicable statute of limitations . The statute provid es that “any action against a manufacturer or seller of a product for injury to person or
p roperty caused by its defective or unreasonably dangerous condition must be brought . . . . within six (6) years of the date of injury. . . .” Tenn. Code Ann. §29

- 28

- 103. Ms. Greenwood’s alleged injury occurred in March 2007, which was eight years before the filing of Case 3. As a result, Appellees argued that Ms. Greenwood was time

- barred from bringing Case 3. Appellees further argued that
, when the trial court entered the order of voluntary nonsuit i n Case 2 , the lawsuit was, in essence, permanently d ismissed. Additionally, Appellees raised the defense of improper service of process, arguing that Case 2 was served on their attorney (for Case 1) and was not served on the Appellees. By order entered on July 9, 2015, the trial court dismissed Case 3. S pecifically, the trial court held that “when [ Ms. Greenwood ] did not serve [Appellees] (but instead [Appellees’ attorney]) with process on her March 28, 2014 complaint, her subsequent non

- suit on May 9, 2014 did not operate to afford her another one (1) ye ar from that date to file a new lawsuit.” Ms. Greenwood filed a motion to reconsider, which the trial court denied by o rder dated August 28, 2015. Ms. Greenwood appeals.

II. Issues

We restate Ms. Greenwood’s issues as follows:- 3

-

1. Whether the trial court erred when it dismissed Appellant’s case

.

2. Whether the trial court erred when it found that service on Appellee’s counsel was not effective.

In this appeal, Appellees request their fees and costs for the defense of an alleged frivolous appeal pursuant to Tennessee Code Annotated Section 27

- 1

- 122

.

III. Standard of Review

The issues presented in this appeal involve the interpretation of certain statutes. Statutory construct ion is a question of law that is reviewable on a de novo basis without any presumption of correctness. Gleaves v. Checker Cab Transit Corp.

, 15 S.W.3d 799, 802 (Tenn. 2000); Jordan v. Baptist Three Rivers Hosp

., 984 S.W.2d 593, 599 (Tenn. 1999); Myint v. Allstate Ins. Co

., 970 S.W.2d 920, 924 (Tenn. 1998). When dealing with statutory interpretation, o ur primary objective is to carry out legislative intent without broadening or restricting the statute beyond its intended scope. Houghton v. Aramark Edu c. Res., Inc. , 90 S.W.3d 676, 678 (Tenn. 2002). In construing legislative enactments, we presume that every word in a statute has meaning and purpose and should be given full effect if the obvious intention of the Legislature is not violated by so doing. In re C.K.G.

, 173 S.W.3d 714, 722 (Tenn. 2005). When a statute is clear, we apply the plain meaning of the language

. Eastman Chem. Co. v. Johnson

, 151 S.W.3d 503, 507 (Tenn. 2004). Our obligation is simply to enforce the statute as written

. Abels ex re l. Hunt v. Genie Indus., Inc

., 202 S.W.3d 99, 102 (Tenn. 2006). It is only when a statute is ambiguous that we may reference the broader statutory scheme, the history of the legislation, or other sources. Parks v. Tenn. Mun. League Risk Mgmt. Pool

, 974 S .W.2d 677, 679 (Tenn. 1998). Further, the language of a statute cannot be considered in a vacuum, but “should be construed, if practicable, so that its component parts are consistent and reasonable.” Marsh v. Henderson

, 221 Tenn. 42, 424 S.W.2d 193, 196 ( 1968). Any interpretation of the statute that “would render one section of the act repugnant to another” should be avoided. Tenn. Elec. Power Co. v. City of Chattanooga

, 172 Tenn. 505, 114 S.W.2d 441, 444 (1937). We must also presume that the Legislature was aware of any prior enactments at the time the legislation passed. In re Estate of Tanner , 295 S.W.3d 610, 613

– 14 (Tenn. 2009)(citing Owens v. State

, 908 S.W.2d 923, 926 (Tenn.1995) )

. Before turning to the issues, we acknowledge t hat Ms. Greenwood is proceeding pro

se. As such, this Court must take into account that many pro se litigants have no legal training and little familiarity with the judicial system. Garrard v. Tenn. Dep't of Corr., No. M2013

- 01525

- COA

- R3

- CV, 2014 WL 1887298, at *3 (Tenn. Ct. App. May 8, 2014)(internal citations omitted). It is well

- settled that “ pro se litigants are held to the same procedural and substantive standards to which lawyers must adhere.” Brown v. Christian Bros. University

, No. W2012

- 01336

- COA

- R3

- CV , 2013 WL 3982137, at *3 (Tenn. Ct. App. Aug. 5, 2013),- 4

-

perm. app. denied (Tenn. Jan. 15, 2014). While a party who chooses to represent himself or herself is entitled to the fair and equal treatment of the courts, Hodges v. Tenn. Att'y Gen

., 43 S.W.3d 918 , 920 (Tenn. Ct. App. 2000), “[p]ro se litigants are not . . . entitled to shift the burden of litigating their case to the courts.” Whitaker v. Whirlpool Corp

., 32 S.W.3d 222, 227 (Tenn. Ct. App. 2000).

IV. Analysis

The Tennessee saving statute reads in pertinent part as follows:
(a) If the action is commenced within the time limited by a rule or statute of limitation, but the judgment or decree is rendered against the plaintiff upon any ground not concluding the plaintiff's right of action, or where the judgment or decree is rendered in favor of the plaintiff, and is arrested, or reversed on appeal, the plaintiff, or the plaintiff's representatives and privies, as the case may be, may, from time to time, commence a new action within one (1) year after the reversal or arrest. Actions originally commenced in general sessions court and subsequently recommenced pursuant to this section in circuit or chancery court shall not be subject to the monetary jurisdictional limit originally imposed in the general sessi ons court.
Tenn. Code Ann. § 28

- 1

- 105(a). T h is statute is intended to provide the plaintiff a chance to renew a suit if it is dismissed other than by a judgment on the merits. Turner v. Aldor Co. of Nashville, Inc.

, 827 S.W.2d 318, 321 (Tenn. Ct. App. 19 91) (citing Nashville C. & St. L. Ry. v. Bolton

, 134 Tenn. 447, 455, 184 S.W. 9, 11 (1915)). Thus, its purpose is to “ aid the courts in administering fairly between litigants without binding them to minor and technical mistakes made by their counsel in in terpreting the complexities of the laws of procedure.” Foster v. St. Joseph Hosp.

, 158 S.W.3d 418, 422 (Tenn. Ct. App. 2004) (quoting Henley v. Cobb

, 916 S.W.2d 915, 917 (Tenn. 1996)). However, the statute should not be applied to insulate a plaintiff fro m its own laches, negligence, or similar fault. Turner

, 827 S.W.2d at 321

.

The case law interpreting the Tennessee saving statute dates back over one hundred
years . In the case of Boyce v. Southern Railway Co. , 5 Tenn. Civ. App. 140, aff’d (1914), the Appellant filed a third lawsuit within one year of the dismissal of her second lawsuit, but more than one year after her first nonsuit. The Boyce court determined that the Appellant’s third suit should have been filed within one year of her first nons uit and that she was not entitled to successive saving years following each nonsuit. Id. at 143. This court noted:

[I]n no case, do we think the statute was intended to give [ plaintiff ] the right to bring a suit after the expiration of one year from the dismissal of the suit first instituted. We think the plain meaning of this statute is, that when an action is- 5

-

instituted and the plaintiff voluntarily dismisses it, or take a non

- suit, such plaintiff may then, within one

- year after such dismissal or non

- suit, institute a new suit for the same cause of action, but when that is done, the right, under this statute, has been exhausted.

Id.

Two years later, t he Tennessee Supreme Court upheld the Boyce decision in Reed v. Cincinnati N.O. & T.P. Ry. Co.

, 19 0 S.W. 458 ( Tenn. 1916). In Reed

, the Appellant filed his case a third time within one year of his second nonsuit, but more than one year after his first nonsuit. The Appellant in Reed argued that the Tennessee saving statute allowed him an unlimited number of new one

- year saving periods within which to re file his case after each successive voluntary dismissal. The Reed court rejected the appellant’s contention and held that the statute did n ot provide for the indefinite succession of suits on the same cause of action. Reed

, 190 S.W. at 458

- 59. In reaching its conclusion, the Reed court noted that

[t] he statute was clearly intended for the benefit of a plaintiff whose case had for some reaso n, for which he should not be made to suffer, been dismissed without a hearing on the merits, and we think the true construction of the act is, as stated in [ Memphis & C.R. Co. v. Pillow

, 56 Tenn. 248, 1872 WL 3851 (1872) ], that the new suit, or any subse quent suit, must be instituted within one year after the termination of the action that was brought “ within the time limited ” by the statute of limitations.

Reed

, 190 S.W. at 459 ( e mphasis added) (citing Memphis & C.R. Co. v. Pillow

, 56 Tenn. at 252)

.

In Turner v. N.C. & S.T.L. Railway , 285 S.W.2d 122 ( Tenn. 1955), the Appellant had
two voluntary dismissals after the statute of limitations expired. The second complaint was filed within one year of the first dismissal, and the third complaint was filed within one year of the second dismissal but more than one year from the first dismissal. Turner , 285 S.W.2d at 123. Applying the holdings in Reed and Boyce
, the Tennessee Supreme Court concluded that the third case was barred because it was filed more tha n one year from the taking of the first nonsuit. Id . at 123

- 24. However, i n Balsinger v. Gass , 379 S.W. 2d 800 (Tenn. 1964), the Tennessee Supreme Court modified its previous holding s to the extent that the one

- year saving period is to be measured from th e last voluntary dismissal of a case brought within the statute of limitations. Id

. In 1982, this Court addressed the saving statute in the context of whether Rule 41.02(2) of the Tennessee Rule s of Civil Procedure, which allows for two voluntary dismissals before an action is barred, affects the time in which a party can refile a case following a voluntary dismissal. Payne v. Matthews , 633 S.W. 2d 494, 495 (Tenn. Ct. App.- 6

-

1982). Ultimately, thi s Court determined that the saving statute addresses the relevant time period in which a party can refile a case while Rule 41.01 of the Tennessee Rule of Civil Procedure addresses the number of nonsuits that can be taken. Id. at 496.

In the case of Freem an v. CSX Transp., Inc. , No. M2010

- 01833

- COA

- R9CV, 2011 WL 1344727, at *5

- 6 (Tenn. Ct. App. Apr. 7, 2011)
, Appellee filed a second and third lawsuit during the saving year after the statute of limitations had expired. Appellants argued that the saving sta tute did not permit multiple refilings during the one

- year grace period. This Court concluded that Appellants’ interpretation would impose artificial limitations on the saving statute and held that Appellee’s law suit was not barred even though her third l awsuit was the second suit filed during the saving year and was filed after the statute of limitations had expired. Id

. at *11.

In this case, Appellant filed her initial complaint on January 5, 2009 and nonsuited her lawsuit on March 28, 2013. Appellant then filed Case 2 within one year of her first voluntary nonsuit. On April 23, 2014, Appellant filed a notice of nonsuit as to Case 2. On March 27, 2015, Appellant filed Case 3 . Case 3 was filed within one year of the dismissal of Case 2, but more tha n one year after the entry of the initial non

- suit in Case 1. Based on the foregoing authorit ies
, we conclude that t he Tennessee saving statute does not operate to save Appellant’s law suit because her third refiling was filed outside the one year saving p eriod and after the statute of limitations had expired. Because the saving statute itself bars Appellant’s third case, the trial court’s focus on the improper service of process in Case 2 was unnecessary. However, t his Court will affirm a decree that is correct in result, but rendered upon different, incomplete, or erroneous grounds. Cont'l Cas. Co. v. Smith , 720 S.W.2d 48, 50 (Tenn. 1986)(citing Hopkins v. Hopkins

, 572 S.W.2d 639, 641 (Tenn.1978) )

. Accordingly , we affirm the judgment of the trial court , and pretermit Appellant’s remaining argument s

.

B. Attorney’s Fees on Appeal

Appellees argue that this Court should award them attorney’s fees for having to defend this appeal. Specifically, Appellees argue that this appeal is entirely frivolous within the meaning of the law . Tennessee Code Annotated Section 27

- 1

- 122 states that:

When it appears to any reviewing court that the appeal from any court of record was frivolous or taken solely for delay, the court may, either upon motion of a party o r of its own motion, award just damages against the appellant, which may include but need not be limited to, costs, interest on the judgment, and expenses incurred by the appellee as a result of the appeal.

Tenn. Code Ann. § 27

- 1

- 122. “In considering a r equest for attorney’s fees on appeal, we consider the requesting party’s ability to pay such fees, the requesting party’s success on- 7

-

appeal, whether the appeal was taken in good faith, and any other equitable factors relevant in a given case.” Moran v. Wi lensky , 339 S.W. 3d 651, 666 (Tenn. Ct. App. 2010)(citing Archer v. Archer , 907 S.W. 2d 412, 419 (Tenn. Ct. App. 1995)). Whether to award costs for a frivolous appeal is a discretionary decision. Young v. Barrow , 130 S.W. 3d 59, 66

- 67 (Tenn. Ct. App. 200 3). Although we have affirmed the trial court’s ruling in this case, we do
not conclude that the appeal was taken for any subversive purpose. Accordingly, we exercise our discretion to deny Appellees’ request for attorney’s fees.

V. Conclusion

For the f oregoing reasons, we affirm the order of the trial court. This case is remanded for such further proceedings as may be necessary and are consistent with this opinion. Costs of the appeal are assessed against the Appellant, Christine Greenwood for all of which execution may issue if necessary.

_________________________________ KENNY ARMSTRONG
, JUDGE